RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution

Declaration of IndependenceThe Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832

Chapter III

Of the powers delegated to the General Government in the Federal Constitution. Containing in Division I. The Constitution of the United States; Division II. On the powers of Congress; Division III. On the power and duty of the President; Division IV. On the constitutional jurisdiction of the Supreme Court of the United States.

Before considering the very general and comprehensive subject of this chapter, it may repay the reader’s attention to examine, in a cursory manner, the constitution itself, in which all these powers are contained. For this reason, as well as because it may frequently be convenient to such as are desirous of consulting it, to know its precise phraseology, it was thought best to introduce it in this place, without abridgement or any other alteration, either of its language or arrangement.

Division I. Constitution of the United States.

We, the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.


Section I. All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

Sec. Ii. The House of Representatives shall be composed of members chosen every second year by the people of the several States, and the electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State Legislature.

No person shall be a Representative who shall not have attained to the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen.

Representatives and direct taxes shall be apportioned among the several States, which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons. The actual enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term of ten years, in such manner as they shall by law direct. The number of Representatives shall not exceed one for every thirty thousand, but each State shall have at least one Representative; and, until such enumeration shall be made, the State of New Hampshire shall be entitled to choose three, Massachusetts eight, Rhode Island and Providence Plantations one, Connecticut five, New York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill up such vacancies.

The House of Representatives shall choose their speaker and other officers; and shall have the sole power of impeachment.

Sec. iii. The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six years; and each Senator shall have one vote.

Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes. The seats of the Senators of the first class shall be vacated at the expiration of the second year, of the second class at the expiration of the fourth year, and of the third class at the expiration of the sixth year, so that one third may be chosen every second year; and if vacancies happen by resignation, or otherwise, during the recess of the Legislature of any State, the Executive thereof may make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancies.

No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, bean inhabitant of that State for which he shall be chosen.

The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.

The Senate shall choose their other officers and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States.

The Senate shall have the sole power to try all impeachments. When sitting for that purpose, they shall be on oath or affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no person shall be convicted without the concurrence of two thirds of the members present.

Judgment in case of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States; but the party convicted shall nevertheless be liable and subject to indictment, trial, judgment, and punishment, according to law.

Sec. Iv. The times, places, and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may, at any time, by law, make or alter such regulations, except as to the places of choosing Senators.

The Congress shall assemble at least once in every year; and such meeting shall be on the first Monday in December, unless they shall by law appoint a different day.

Sec. V. Each House shall be the judge of the elections, returns, and qualifications of its own members; and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner and under such penalties as each House may provide.

Each House may determine the rules of its proceedings, punish its members for disorderly behavior, and, with the concurrence of two thirds, expel a member.

Each House shall keep a journal of its proceedings, and from time to time publish the same, excepting such parts as may in their judgment require secrecy ; and the yeas and nays of the members of either House, on any question, shall, at the desire of one fifth of those present, be entered on the journal.

Neither House, during the session of Congress, shall, without the consent of the other, adjourn for more than three days, nor to any other place than that in which the two Houses shall be sitting.

Sec. Vi. The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall, in all cases, except treason, felony, and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to or returning from the same ; and for any speech or debate in either House, they shall not be questioned in any other place.

No Senator or Representative shall, during the time for which he was elected, be appointed to any civil office under the authority of the United States which shall have been created, or the emoluments whereof shall have been increased, during such time; and no person holding any office under the United States shall be a member of either House during his continuance in office.

Sec. Vii. All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments, as on other bills.

Every bill which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States; if he approve, he shall sign it; but if not, he shall return it, with his objections, to that House in which it shall have originated, who shall enter the objection at large on their journal, and proceed to reconsider it. If, after such reconsideration, two thirds of that House shall agree to pass the bill, it shall be sent, together with the objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a law. But in all such cases, the votes of both Houses shall be determined by yeas and nays, and the names of the persons voting for and against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law in like manner as if he had signed it, unless the Congress by their adjournment prevent its return, in which case it shall not be a law.

Every order, resolution, or vote, to which the concurrence of the Senate and House of Representatives may be necessary, (except on a question of adjournment,) shall be presented to the President of the United States; and before the same shall take effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill.

Sec. Viii. 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, imposts, 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, 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 se

curing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.

To constitute tribunals inferior to the supreme court.

To define and punish piracies and felonies 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 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 and regulation of the land and naval forces.

To provide for calling forth the militia, to execute the laws of the Union, suppress insurrections, and repel invasions.

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 discipline prescribed by Congress.

To exercise exclusive legislation, in all cases whatsoever, 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 of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings: and

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 or officer thereof.

Sec. Ix. The migration or importation of such persons, as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress, prior to the year one thousand eight hundred and eight; but a tax or duty may be imposed on such importation, not exceeding ten dollars for each person.

The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require it.

No bill of attainder, or ex post facto law, shall be passed.

No capitation or other direct tax shall be laid, unless in proportion to the census or enumeration herein before directed to be taken.

No tax or duty shall be laid on articles exported from any State. No preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another: nor shall vessels, bound to or from one State, be obliged to enter, clear, or pay duties in another.

No money shall be drawn from the treasury, but in consequence of appropriations made by law: and a regular statement and account of the receipts and expenditures of all public money shall be published from time to time.

No title of nobility shall be granted by the United States. And no person, holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any king, prince, or foreign State.

Sec. x. No State shall enter into any treaty, alliance, or confederation; grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts, or grant any title of nobility.

No State shall, without the consent of the Congress, lay any imposts or duties on imports or exports, except what may be absolutely necessary for executing its inspection laws; and the net produce of all duties and imposts, laid by any State on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of the Congress. No State shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war, in time of peace, enter into any agreement or compact with another State, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.


Sec. I. The Executive Power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected as follows:

Each State shall appoint, in such manner as the Legislature thereof may direct, a number of Electors, equal to the whole number of Senators and Representatives, to which the State may be entitled in the Congress. But no Senator, or Representative, or person holding an office of trust or profit under the United States, shall be appointed an Elector.

[The Electors shall meet in their respective States, and vote by ballot for two persons, of whom one, at least, shall not be an inhabitant of the same State with themselves. And they shall make a list of all the persons voted for, and of the number of votes for each; which list they shall sign and certify, and transmit sealed to the seat of the Government of the United States, directed to the President of the Senate. The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted. The person having the greatest number of votes shall be the President, if such number be a majority of the whole number of Electors appointed; and if there be more than one who have such majority, and have an equal number of votes, then the House of Representatives shall immediately choose, by ballot, one of them for President; and if no person have a majority, then, from the five highest on the list, the said House shall in like manner choose the President. But, in choosing the President, the votes shall be taken by States, the representation from each State having one vote: a quorum for this purpose shall consist of a member or members from two thirds of the States; and a majority of all the States shall be necessary to a choice. In every case, after the choice of the President, the person having the greatest number of votes of the Electors, shall be the Vice-President. But if there should remain two or more, who have equal votes, the Senate shall choose from them, by ballot, the Vice-President.] See amendment XII.

The Congress may determine the time of choosing the Electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.

No person, except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President. Neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States.

In case of the removal of the President from office, or of his death, resignation, or inability to discharge the powers and duties of the said office, the same shall devolve on the VicePresident; and the Congress may, by law, provide for the case of removal, death, resignation, or inability, both of the President and Vice-President, declaring what officer shall then act as President; and such officer shall act accordingly, until the disability be removed, or a President shall be elected.

The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished, during the period for which he shall have been elected; and he shall not receive, within that period, any other emolument from the United States, or any of them.

Before be enter on the execution of his office, he shall take the following oath or affirmation:

‘I do solemnly swear (or affirm) that I will faithfully execute the office of President of the United States; and will, to the best of my ability, preserve, protect, and defend the Constitution of the United States.’

Sec. Ii. The President shall be commander in chief of the army and navy of the United States, and of the militia of the several States, when called into the actual service of the United States. He may require the opinion, in writing, of the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices: and he shall have power to grant reprieves and pardons, for offences against the United States, except in cases of impeachment.

He shall have power, by and with the advice and consent of the Senate, to make treaties, provided two thirds of the Senators present concur: and he shall nominate, and by and with the advice and consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law. But the Congress may, by law, vest the appointment of such inferior officers as they shall think proper, in the President alone, in the courts of law, or in the heads of departments.

The President shall have power to fill up all vacancies that may happen, during the recess of the Senate, by granting commissions, which shall expire at the end of their next session.

Sec. iii. He shall, from time to time, give to the Congress information of the state of the Union ; and recommend to their consideration such measures as he shall judge necessary and expedient. He may, on extraordinary occasions, convene both Houses, or either of them, and, in case of disagreement between them, with respect to the time of adjournment, he may adjourn them to such time as he shall think proper. He shall receive Ambassadors and other public Ministers. He shall take care that the laws be faithfully executed; and shall commision all the officers of the United States.

Sec. It. The President, Vice President, and all civil officers of the United States, shall be removed from office, on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.


Sec. I. The Judicial Power of the United States shall be vested in one Supreme Court, and in such Inferior Courts as the Congress may, from time to time, ordain and establish. The Judges, both of the Supreme and Inferior Courts, shall hold their offices during good behavior; and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Sec. Ii. The Judicial Power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the

United States, and treaties made, or which shall be made, under their authority; to all cases affecting Ambassadors, other public Ministers, and Consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State, claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign States, citizens or subjects. See amendment XI.

In all cases affecting Ambassadors, other public Ministers, and Consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations, as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by jury: and such trial shall be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.

Sec. in. Treason against the United States shall consist only in levying war against them, or in adhering to their ener mies, giving them aid and comfort. No person shall be convicted of treason, unless on the testimony of two witnesses to the same overt act, or on confession in open court.

The Congress shall have power to declare the punishment of treason: but no attainder of treason shall work corruption of blood, or forfeiture, except during the life of the person attainted.


Sec. I. Full faith and credit shall be given, in each State, to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof.

Sec . ii. The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.

A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the Executive Authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.

No person, held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor may be due.

Sec . iii. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State—nor any State be formed by the junction of two or more States, or parts of States —without the consent of the Legislatures of the States concerned, as well as of the Congress.

The Congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States: and nothing in this Constitution shall be so construed, as to prejudice any claims of the United States, or of any particular State.

Sec. iv. The United States shall guarantee to every State in this Union a republican form of government; and shall protect each of them against invasion, and on application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic violence.

Article v.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or on the application of the Legislatures of two thirds of the several States, shall call a Convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided, that no amendment, which may be made prior to the year one thousand eight hundred and eight, shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no State, without its consent, shall be deprived of its equal suffrage in the Senate.


All debts contracted, and engagements entered into, before the adoption of this Constitution, shall be as valid against the United States, under this Constitution, as under the Confederation.

This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land: and the Judges in every State shall be bound thereby; any thing in the Constitution or laws of any State to the contrary notwithstanding.

The Senators and Representatives before mentioned, and the members of the several State Legislatures, and all Executive and Judicial officers, both of the United States and of the several States, shall be bound, by oath or affirmation, to support this Constitution; but no religious test shall ever be required as a qualification to any office or public trust under the United States.


The ratification of the Conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.


I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

II. A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.

III. No soldier shall, in time of peace, be quartered in any house, without the consent of the owner; nor in time of war, but in a manner to be prescribed by law.

IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation—and particularly describing the place to be searched, and the persons or things to be seized.

V. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment by a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service, in time of war, or public danger: nor shall any person be subject, for the same offence, to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case, to be a witness against himself; nor be deprived of life, liberty, or property, without due process of law: nor shall private property be taken for public use without just compensation.

VI. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury, of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law; and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defence.

VII. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved: and no fact, tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of common law.

VIII. Excessive bail shall not be required; nor excessive fines imposed; nor cruel and unusual punishments inflicted.

IX. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others, retained by the people.

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.

XI. The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State.

XII. 1. The electors shall meet in their respective States, and vote by ballot for President and Vice President, one of whom, at least, shall not be an inhabitant of the same State with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice President; and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice President, and of the number of votes for each; which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate: the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates, and the votes shall then be counted: the person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of electors appointed; and if no person have such majority, then from the persons having the highest numbers, not exceeding three, on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by States, the Representation from each State having one vote; a quorum for this purpose shall consist of a member or members from two thirds of the States, and a majority of all the States shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice President shall act as President, as in the case of the death or other constitutional disability of the President.

2. The person having the greatest number of votes as Vice President, shall be the Vice President, if such number be a majority of the whole number of electors appointed; and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice President: a quorum for the purpose shall consist of two thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.

3. But no person constitutionally ineligible to the office of President, shall be eligible to that of Vice President of the United States.

XIII. If any citizen of the United States shall accept, claim, receive, or retain any title of nobility or honor, or shall, without the consent of Congress, accept and retain any present, pension, office, or emolument of any kind whatever, from any Emperor, King, Prince, or Foreign Power, such person shall cease to be a citizen of the United States, and shall be incapable of holding any office of trustor profit under them, or either of them.

In giving a construction to the constitution, it should be remembered,

1. That the constitution is a compact made by the people of the United States, and not a compact made by the legislatures of the different states.

2. That the government of the United States can claim no powers which are not granted to it by the constitution, either expressly or by necessary implication.

3. That the words of the constitution are to be taken in their natural sense, without restriction or enlargement.

4. That, where the constitution contemplates and authorizes a certain object to be effected, all proper means, not expressly prohibited by the constitution, may be adopted to effect that object.

5. That, though the powers delegated by the constitution are limited in extent, yet they are supreme within their limits, in the exercise of them. That, consequently,

6. The constitution is the paramount law of the land, and cannot be altered by congress, or by any other political power, except in the mode pointed out in itself. See 2 Dal. 304.

Division II. On the powers of Congress.

Congress derives its existence and all its powers from the constitution. An act of congress, therefore, made contrary to any express restriction of the constitution, is absolutely void. 3 Dal. 399.

And, for the same reason, an act of congress, in enacting which there is an attempt to exercise powers, which are not given in the constitution, will be void. See 1 Cranch. 176.

Because the constitution is the only authority which they have, and beyond which they ought not to go. To prevent all doubts which might otherwise arise on this subject, it is declared in article tenth of the amendments to the constitution, that, ‘ the powers, not delegated to the United States, nor prohibited by it to the states, are reserved to the states respectively, or to the people.’ But a law may be void in part, so far as it is unconstitutional, and valid in other respects. See 3 Wash. 313.

Yet it is not considered necessary, that a power should be given in express terms, if it can be made out by necessary implication from an authority which is expressly granted. See 1 Wheat. 304, 330. 4 Wheat. 316.

And this is in conformity with what is familiarly called the sweeping clause in the constitutiou, viz.: Art. 1, sec. 8, by which congress are empowered ‘to make all laws, which shall be necessary and proper for carrying into execution the foregoing powers, (that is, the powers previously enumerated in the constitution) and all powers vested by this constitution in the government of the United States, or in any department or office thereof.’

With respect to the incidental or implied powers of congress, therefore, it seems, that where certain means are appropriate to carry into effect a certain power, and there is no prohibition to use them, and no particular means are pointed out by which it may be effected, congress have authority to juse such as are appropriate. So, where a certain duty is imposed on the government to do a certain act, and there is no restraint on any means in the constitution, they have authority to select the means at discretion. And for the same reason, where the end is within the intent of the constitution, all means which are plainly adapted to that end, and are not prohibited, may constitutionally be employed to that effect. See 4 Wheat. 316.

In any such case, if the means are appropriate, how far they are necessary for that purpose, under the ‘sweeping clause,’ is a question for the decision of congress, and not for the supreme court of the United States. Ibid.

It was therefore decided.that congress has power to incorporate a bank. Ibid.

Further; in construing the extent of the powers created by the constitution, it is held, that there is no other rule, than to consider its language in relation to the powers which it confers, in connexion with the purposes for which they were conferred. See 9 Wheat. 188. The reason assigned is, that the framers of the constitution must be understood to have employed words in their natural sense, and to have intended what they have said.

By article VI. of the constitution, treaties made agreeably to it, are also the supreme law of the land. It is obvious, however, that a treaty made contrary to the constitution will be void; because it would be absurd, if the treaty making power, which derives all” its authority from the constitution, could contravene the constitution itself. For the same reason, if a treaty were made, containing stipulations, or concessions, which the president and senate under the constitution, have no authority to make, it would be void; for instance, if they should attempt to cede part of the acknowledged territory of a state, without the consent of the people of that state in regular convention, it must be void, as not authorized by the constitution. And, it is believed, that the consent of the legislature of such state would not avail in any such case, unless specially authorized by the people to act on their behalf, in relation to this subject; because no such authority is conferred by their state constitution.

A treaty made subsequently to an act of congress, and incompatible with any of its provisions, would so far operate as a repeal of the act. The reason is, that the treaty making power is established by the constitution, and is supreme within its department; provided, only that it is not inconsistent with the constitution, nor requires the exercise of any power not granted in it. On the other hand, if an act of congress were enacted after a treaty, and inconsistent with it, though in any other respect not inconsistent with the constitution, though the inconsistency amounted to an intentional violation of the treaty; yet there does not appear to be any sufficient foundation for an exception to the validity of the law on this account. It is true, such a violation of the treaty might lead to a war; but it should be recollected, that congress has the power of declaring war, which is a far more decisive measure than infringing an article in a treaty. It is probable the courts would be governed in their construction of the law, in any such case, by the apparent intention of congress, whether the object was avowedly to infringe a treaty or not.

It is not within the limits of this work to examine minutely the precise extent of power probably intended to be bestowed on congress, in the enumeration of powers contained in section 8, of Article 1 of the constitution, some of which would singly require a volume for that purpose. It is the less necessary, because the concise expressions made use of in the constitution, to define these powers, are sufficiently clear for ordinary occasions, and professional gentlemen will be obliged of course to resort to the different series of original reports, the index aione to each of whichj makes a larger book than the present work. A few remarks on some of them must suffice.

Under section 8 of the constitution, congress is authorized to lay and collect taxes, &c.; but they must be uniform throughout the United States. A restriction is laid upon this general power, in section 6, ‘that no capitation or direct tax shall be laid, unless in proportion to the census, &c. It seems, agreeably to the construction, that has been given to this clause in section 9, that the only taxes which it is necessary to apportion among the states, whenever congress shall see fit to lay them, are the land tax and the poll tax, no others being considered as direct taxes, within the intent of the constitution; and, consequently, all other taxes which congress may impose, agreeably to the constitution, must be laid uniformly. See 3 Dal. 171.

This power to tax is co-extensive with the territory of the United States, and congress has no power to exempt any state from its due share of the burthen of taxation. See 5 Wheat. 317.

However, it is held, that congress is not bound to extend a direct tax to the District of Columbia, or to the territories, though they may do so at discretion. See ibid.

A question may here be raised, whether, under the first clause of section 8, just referred to, congress has any right to impose taxes, except for the purpose of raising a revenue. The whole clause reads thus: ‘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, imposts, and excises, shall be uniform throughout the United States.’ In order to discover the true interpretation of this clause, it may afford some assistance, so far as the present question is concerned, to take it in connexion with the two next, which authorize congress ‘to borrow money on the credit of the United States,’ and ‘to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.’

In the construction of the first clause alone, a question may be raised, whether that part of the clause ‘to pay the debts, and provide for the common defence and general welfare,’ is to be taken as a distinct authority from that of laying taxes, or, whether it is to be taken as expressing the purposes for which alone congress have the power of taxation. If the former construction were the true one, then congress would have an unlimited discretionary power of taxation. This power, however, it is believed, the states in adopting the constitution, never intended to confer on congress. It will be recollected, that, at the close of the war of the revolution, which was a long and severe struggle, and during which, the country had suffered much from the inefficiency of the articles of confederation, the states were oppressed with a heavy public debt* which congress, under the confederation, was wholly incapable of discharging. That, consequently, a regard for the safety of the states, in Case of another war; the wish to pay the public debt, and thus redeem the suffering credit of the states; and, in general, to provide for the public welfare, by a closer union of the states; were some of the principal motives for adopting the present constitution. It will be remembered, that the power of taxation created one of the greatest obstacles to the adoption of the present constitution; and, it is probable that some of the states would never have ratified it, if they had considered the constitution as bestowing on congress an unlimited power of taxation. What then are to be the limits to this power? The answer must be that congress has no constitutional power to impose taxes, except in three cases, viz.: 1, to pay the public debt; 2, to provide for the common defence; 3, to provide for the general welfare.

With regard to the exercise of this power in the two first cases, there can but little doubt arise; since here the national honor, as well as the national safety, is concerned. But, with regard to the third, it may be asked, who shall determine, in any case, when the public welfare or interest may be advanced by the expenditure of money; and consequently, though neither the public debt nor the public safety is concerned, it will be expedient for the public to raise money by taxation. Certainly there can be but one answer to this question, viz.: that congress has the right to determine at discretion, whether it will advance the public interest to raise money in this way. For, this power of raising money is merely ancillary to an appropriation of it. Since, if congress think that the appropriation of a sum of money will contribute to the general welfare, they may use their discretion to raise it accordingly. And why should there be a distinction between such a power, and all others, in this respect? Must not the persons entrusted with the power, be considered as having the exercise of it left to their discretion? It is certainly left to their discretion, not to impose any taxes, unless they think it expedient; then, why is not the power, to impose taxes when they think it expedient for the general welfare, also left at their discretion?

If it should be asked, what is meant in the constitution by the words ‘ general welfare,’ it may be answered, that, whatever contributes to advance the true interests of the country, may be considered as conducing to its welfare, and so far will come within the meaning of the words in the constitution. But here, the word ‘general’ is the emphatic word, and not ‘welfare.’ For, when the constitution was first adopted, it cannot reasonably be supposed, that the states adopting it, would have been willing that monies should be raised among them by a general tax, to be appropriated and expended to obtain any benefit merely partial; that is, for the advantage of some one or more particular states, while the others, though they paid their proportions of the taxes, derived no advantage from the expenditures. On this account, the states stipulate in the constitution or national compact, that congress shall have power to impose taxes, he. to provide for the general welfare, and for the same reason very naturally require, that all duties, &x. shall be uniform throughout the United States.

As it would be unconstitutional, therefore, to lay an unequal tax, as well as an act of oppression to those who were compelled to pay the larger proportion of it; so it would also be unconstitutional to expend the money collected by it, with a view to give some peculiar advantage to some one or more of the states, only, as well as oppressive to those who bore their share of the burthen, while others reaped all the benefit. It is not to be supposed, however, that it is practicable to preserve a perfect equality, or a precise proportion in any such case, between the burthens and benefits which fall to the share of the states, respectively. But, as a principle or standard of right, this equality or just proportion should never be lost sight of for a moment, in any public measures whatever.

Further; whether it is necessary or not, to impose a certain tax in order to provide for the public welfare, belongs to congress alone to determine, and for two reasons; I, Because this restriction is given in the constitution in order to furnish congress with a rule, by which to decide in what cases to impose taxes, according to the intention of the parties to that compact. This is a sacred trust confided to the presumed integrity and justice of congress, and which, it would seem, they could hardly violate without being conscious of it; 2, Because no other persons are entrusted by the constitution with the important office of determining whether a tax is necessary for the general welfare or not. The supreme court of the United States has no jurisdiction to determine this question, which is one of political expediency alone. But, if it should once be made to appear, that such taxes are not conducive to the general welfare; as if the purpose for which they are imposed, is expressly declared in the act which imposes them, and the appropriation as there made, it is self-evident, is to effect some object of a partial nature, perhaps it may be assumed that the supreme court might well decide, that the tax does not conduce to the general welfare, and therefore that congress has no authority under the constitution to impose it. To illustrate; suppose congress should enact a law imposing a new tax, and should appropriate the money to be collected by it, to build a new state house in Connecticut, or any other state; can any one doubt that this law would be unconstitutional, and that the supreme court of the United States would decide that it was void? And yet, if no unconstitutional appropriation should appear on the face of the Act, the court could hardly have any jurisdiction of the subject, in this respect.

A similar restriction must be implied, upon the power which is given in the second clause ‘to borrow money on the credit of the United States,’ though there is no express qualification annexed to the exercise of this power. Because it cannot be supposed, that is was intended by the constitution to give congress a power to do that indirectly, which they have no constitutional power to do directly. For, if this restriction is not extended as well to the power of raising money by borrowing, as to that of raising it by imposing taxes, congress will have the power of borrowing money on the credit of the United States for whatever objects they choose; and, having in this way created a public debt, may then exercise the power of taxation for the purpose of raising money to discharge it; though the objects for which the debt was created at first, were such as the constitution never contemplated, as furnishing an occasion for raising money by taxation. But this is too irrational to be admitted, and therefore congress can have no power to borrow money on the credit of the United States, for any other purposes than to pay the public debt, and provide for the common safety and general welfare of the United States.

It may be remarked here, transiently, that the right of expending the public money, must necessarily be limited to those objects, for which alone congress is authorized to raise it. For, if congress have no authority to raise money by the imposition of taxes, or by borrowing, except to answer the necessary purposes before mentioned, it must follow, that congress can appropriate the public money to no other purposes; unless we can suppose the absurdity, that though congress have the power to raise money for a constitutional purpose only, yet, as soon as it is collected, they may apply it to one for which they could not constitutionally have raised it.

It follows, that congress has no right, under the constitution, to appropriate money, except for general purposes, that is, purposes that conduce to the general benefit of all the states. Equality of benefit to all, should also be observed here, if practicable, though it is not of so much consequence as it is that the public burthens should be borne equally, or rather proportionally. For, as long as each state derives a benefit from a public measure, greater than the burthen, which it sustains by paying its proportion of the money expended to effect it, there will be no ground of complaint, though one state, owing to some natural or accidental advantages, should derive ten times as great a benefit from it as the rest. But, where one state bears a heavy burthen in consequence of some public measure, and derives no advantage from it sufficient to compensate for that burthen, while another state derives a very great advantage from it, but bears no greater burthen, perhaps a much lighter one, there is sufficient cause for complaint on account of the inequality, which, it is apparent, could never have been in the contemplation of the states when the constitution was adopted.

It follows from the same train of reasoning, that congress has no authority, under the constitution, to appropriate money to make internal improvements in any case, where the advantage of them is to be derived by one or more particular states only. For, such internal improvements, in the territory of any particular states, should be made by the states themselves, at their own expense. The other states have nothing to do with them; and, by the compact which they have made in the constitution, they never entrusted congress with any power to appropriate money in this way. If, however, an internal improvement in any particular state, will be of service also to the interests of the United States, there should be a comparative estimate made of the particular interest of the state, and of the general interest of the United States; and the expense of making the improvement should be defrayed in just proportions out of the state treasury and that of the United States. If the state will not consent to such an arrangement, then congress will proceed no further than the general interests require.

A more convenient arrangement in this respect, it is believed, would be, for congress to make an annual appropriation of a certain sum of money, more or less, according to circumstances, to be paid over to the state treasuries, according to the ratio of the apportionment of direct taxes, or representatives to congress, and to be disposed of either in internal improvements in the states respectively, or to such uses as the state legislatures should direct. Either of these two modes of making internal improvements would be constitutional and equitable; but, it is believed, that to expend money in internal improvements for the benefit of certain states only, to which they make no proportional contribution, is within none of the powers of congress, and is equally unconstitutional and inequitable.

But, it may be objected here, if this be so, whence does congress derive authority to expend money in the erection of fortifications on the sea-coast of the commercial states, when the benefit of them is principally derived by those states only. The answer is, that one of the principal motives which the states had for forming the union, was to insure the safety of all of them without distinction. It is the duty of the general government, and they have ample power in the constitution, to protect any state that happens to be in danger at any time, from foreign aggression, at any expense, however great to the union, and though the others may be perfectly safe. The advantage here is mutual, because it is altogether uncertain, which state may first need the assistance of the United States. In the early settlement of some of the inland states, since the adoption of the constitution, fortresses and blockhouses, and military posts and stations were erected and maintained by congress, in performance of their duty of defending the settlers, some of which are still kept up, though the task of maintaining them is daily growing less and less necessary. And, for the same reason, if a danger should hereafter arise to any of them from any new enemy, it will equally become the duty of congress to protect them out of the public treasury, at whatever cost. And, if by taking any particular measure of precaution or prevention, the danger may be avoided, or, if it should come, may be more easily repelled, it is within the constitutional discretion of congress to adopt such measures in advance. As therefore congress is bound to protect all the states equally, and as the commercial states on the sea-coast, will be secured or defended from attack much more effectually, by erecting fortifications along their shores and in their harbors, it will not only be a justifiable expenditure of the public money under the constitution, but perhaps the most economical mode of securing the safety of those states, that can be adopted.

The erection of light-houses and the building of ships of war, are justified on a different ground. The first is to secure the shipping from the dangers of the coast, and the latter to protect them from enemies; and, as it is well known that the commerce which is carried on by means of merchant vessels, is advantageous, not only to the exporting and importing states, but likewise to those who consume foreign commodities, and those who raise produce, or manufacture goods for exportation, the security and protection of it concern the general welfare.

The third clause above referred to, authorizes congress to regulate commerce, &.c.; and it may be asked, Has congress any authority, under it, to impose duties on imports? To answer this question, the true meaning of the parties to the constitution should be considered, without resorting to any refined or artificial construction. For this purpose, it will be necessary to know what is meant by regulating trade, and whether it is ever necessary for the mere regulation of trade, to lay a tax on imports, and if so, whether such a measure was at all in the contemplation of the states, when they authorized congress to regulate trade.

The doctrine on this subject is very fully examined in Smith v. Ogden; and it seems that the power to regulate commerce, includes also the power to regulate navigation. It extends also to every species of commercial intercourse between the United States and foreign states, and among the several states of the union; but does not comprehend the commerce between individuals in the same state. This power may be executed to its utmost extent, as far as it is granted by the constitution. It does not comprehend the power of laying duties or imposts, on exports or imports, which is one of the branches of the taxing power; but it extends equally to every species of vessels, however propelled, or however employed. 9 Wheat. 209.

It will immediately occur to an attentive reader, that the constitution, in the first clause referred to, having given authority to congress to impose taxes and duties for certain specified purposes, requiring that they should be uniform ; and, in the second clause, having authorized congress to borrow money on the credit of the United States ; the subject of taxation, or raising money was wholly dismissed from their minds. It would seem probable, therefore, in framing the next clause, which gives power to congress to regulate commerce, the thought of doing it by means of imposts and duties never occurred to them. If, then, there are any other measures, which congress can naturally adopt for the regulation of trade, without resorting to imposts and duties, those measures probably are what the framers of the constitution had particularly in view in this clause.

It should be remarked here, that the whole clause authorizes congress to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. Now, it is expressly forbidden in the fifth clause of section ix. to lay any tax or duty on articles exported from any state, &c.; it is clear, therefore, that, though congress has the power to regulate commerce, to do it by the imposition of duties or taxes, is not what was intended by the constitution. But, it may be said here, that the imposition of duties is forbidden on exports; it follows, that it was not intended by the constitution, to present the imposition of duties on imports. The answer to this objection, which is merely captious, is, that congress has the general power of laying taxes and duties by the first clause of section viii. above referred to, and which has just been examined; and, by the fifth clause of section ix, an exception is made, that no tax or duty shall be laid on exports. The general power of taxation, it has been attempted to show, is restrained to the payment of the public debt, and providing for the common defence and general welfare. This does not authorize the laying of any tax or duty on imports for the regulation of trade. And a power to regulate trade does not imply any right to impose taxes or duties on imports, if trade is susceptible of regulation without it; and as exportation, and the trade among the states can be regulated without it, there is obviously no necessity for implying a power to tax imports, which are introduced by foreign trade, from a power to regulate trade. Still, if it should be necessary to impose a duty on imports, for the advantageous regulation of trade, it cannot be denied that congress has the power to do it. But, then they will do it under the power to lay taxes and duties to provide for the general interest; and it must be subject to the restrictions before mentioned, of not consulting local, sectional, or partial interests only.

Further; as the protection and encouragement of trade and commerce, were subjects of the highest interest and importance to most if not all of the states which first joined in the adoption of the constitution, it cannot be supposed, that by giving congress a power to regulate trade, they meant any thing else than a power to adopt such measures, as they should think best calculated to advance and increase it. Can it be imagined then that, under such a power of regulating trade, congress has a constitutional authority to adopt measures injurious to it, for the purpose of advancing some other interest? Certainly not. If so, then it is quite clear that congress, under the power of regulating trade, has no constitutional authority to lay a duty Ob imports, for the mere purpose of encouraging manufactures; though, if it can be made to appear, that by the imposition of such taxes or duties, trade or commerce will be advanced, it cannot be doubted that congress has such power; and this is a subject that the constitution submits to their discretion.

It remains then to consider, whether, if the general welfare of the states will be promoted by taxing imports, congress has not the power, under these clauses in the constitution, to lay such taxes, even though they may be unfavorable to the interests of trade.

It may be remarked here, that in giving a construction to the constitution, what the states really intended, should be the guide ; and the words used in the constitution should always be taken, not independently and by a strict construction, but with a reference to such intention. However advantageous, therefore, it may be for the interests of the United States, that a certain power should be given to congress, if such power does not appear to be given in the constitution, or, if it may possibly be considered as coming within the comprehensive range of a very general expression, in all probability could never have been in the contemplation of the states to bestow on congress, it cannot be sustained by, or implied from mere considerations of political expediency.

In adopting the constitution, each state must be considered as having acted on its own judgment with regard to the powers, which it was willing to join in confiding to congress. Though a certain power, therefore, may have been considered very proper to be granted to congress by one or more states, yet some particular state may have thought otherwise, and therefore may have refused to confer it. In any such case, to endeavor to make use of general words, in their most comprehensive sense, in order to prove that a certain power is given by them to congress, which such state never contemplated, would be a dishonorable attempt to make the constitution a catching bargain. But there never can be any necessity for resorting to so degrading an expedient. For, if it will be advantageous to the common interest of the United States, that congress should have a certain power, and it is doubtful whether it is granted to them by the constitution, it would be far better to propose an amendment to the constitution, for the purpose of removing the doubt, and either grant or deny the power expressly, than by an artificial or subtle construction of the constitution, usurp a power not distinctly granted by it, to the great dissatisfaction of the dissentients. But, it may be objected perhaps, that by a fair interpretation, the power may be considered as given by implication, or, that it is given according to the literal sense of the words; and, if it is submitted as an amendment to the constitution, it may be impracticable to convince a sufficient number of those who have the power to make amendmepts, to render it effectual as such. The answer is, if the grant of the power to congress is at all doubtful, and the expediency of it is so uncertain, that a sufficient majority cannot now be obtained to insert it as an amendment to the constitution, it will be better to consider it as not granted, than to exercise it against the opinion of so many dissentients, as to its constitutionality, as well as to its policy.

In answer then to the proposed inquiry, it may be observed, that congress undoubtedly has a power to impose taxes, imposts and duties, &c. on imports, in three cases, and in those only, viz.: 1, to pay the national debt; 2, to provide for the common defence ;. 3, to provide for the general welfare. But what was the intended operation of this power to impose duties, &c? It seems clear, that it was to raise money, which was afterwards to be appropriated and expended in obtaining one or more of these objects. Because the duties are to be imposed, 1, to pay the public debt, which cannot be done without collecting and appropriating money; 2, to provide for the common defence, which can only be done by appropriating the money collected from the duties, to the pay of the army or navy, which congress is authorized by the constitution to raise, or maintain, &c. &c. ; 3, to provide for the general welfare, viz.; by the appropriation of the money collected from the duties, to defray the expense of any measures of general expediency.

The injury done to the trade of the country by laying heavy duties in order to pay the public debt, in the first case, or, in order to provide for the public safety, in the second, must be borne, if necessary, as a concession made to justice, or a sacrifice to necessity. But, if the tax or duty is imposed to provide for the general welfare, a distinction should be taken. For, if the sacrifice made in the loss of trade, is general to all the states, and the benefit derived from the sacrifice is likewise general, then the whole becomes a question of political expediency, for the decision of congress, whether trade shall thus be burthened with taxes, in order that the money raised by them should be expended in promoting such measures or not.

But, if one state alone is to suffer in its trade, yet derive little or no advantage from such measures, while the other states, without suffering any material disadvantage in their commerce, are to derive the whole advantage of such measures, this will be wholly contrary to the true intention of the parties to the constitution, as well as taking a very unfair and dishonorable advantage of the state thus oppressed.

There is nothing at all refined in this doctrine, since it is grounded on plain principles of justice and honesty, which every man of integrity would blush to transgress in the common transactions of private life, and which ought not to be disregarded or overstepped by statesmen and politicians, however high their stations and offices, and however great their popularity.

The application of this doctrine is easy. Congress has no constitutional power, under the three first clauses in Article 1, section viii. to impose taxes or duties of any kind, except for the purposes of revenue. Because, though such a power may seem, at first sight, to come within the very general words of the constitution, yet their sense must be restricted to what was the real intention of the states, at the time of its adoption.

It remains to consider the final question, whether any part of the constitution gives congress a power, either expressly or by necessary implication, to impose a duty on imports, for the acknowledged purpose alone, of encouraging domestic manufactures.

Any person consulting the constitution for the purpose of ascertaining whether such a power is given in it to congress, would very naturally turn to those places in it where taxes, duties, and the regulation of trade are mentioned; and, if he could not find any such power granted to congress, either in express terms, or by necessary implication, he would be very apt to give over farther examination, and conclude that no such power is delegated by it. But, in all probability, the true reason why nothing can be found in the constitution in relation to such a power in express terms, is, because at that time, manufactures were so little advanced in this country, that the encouragement of them was not much considered, in comparison with the important objects particularly contemplated in its adoption. For, it was not until Hamilton drew up his report on manufactures, that the subject attracted the public attention in this country, which it deserved.

The country at that time being in debt, and it being necessary to raise money to pay it, as well as for other purposes, the constitutionality of which was never doubted; and the least burthensome way of raising the money being by the imposition of duties on imports, the sole question was, upon what articles it would be the best policy to lay duties. The present constitutional question, whether congress has a right to lay duties for the mere purpose of encouraging manufactures, was not much thought of; because, as the payment of the public debt was a sufficient constitutional ground for the imposition of duties, it was unnecessary to look for another. According to the policy recommended by that distinguished politician, but, which whether wise or unwise, has long prevailed in commercial and manufacturing countries, the duties ought to be laid on such articles of foreign growth or manufacture, as interfere in our own market with similar articles of home production. The reason is, because if this were not done, foreign growers and manufacturers, owing to the greater cheapness of labor in ojd countries, and greater capital, superior skill and experience, and perhaps other causes, which it is not material to consider here, would be able to undersell us in our own market, and the consequence of which would be, that our own countrymen would be discouraged from manufacturing, &ec.; because the low price at which they weuld be compelled to sell, would prevent their receiving reasonable wages for their labor.

Where therefore congress have the constitutional power to lay imposts, the money arising from them being necessary to pay the public debt, or for other constitutional purposes, such considerations of public policy, are properly allowed to designate the articles upon which the duties should be laid. But where there is no such foundation, the money not being wanted for any constitutional purpose, there is no room for the question of policy, until some other constitutional occasion, if there be any such, occurs for the exercise of this power. In relation to the present subject, therefore, no conclusive inference can be drawn from the recommendations of Hamilton, whatever weight may be due to his opinion. The following considerations may perhaps afford some assistance in determining this point.

The constitution was adopted to promote the general welfare of all the states. But, though this is self-evident, no power is given to congress in express terms, to provide for the general welfare, except in the single case of laying taxes, k.c. ‘to provide’ ‘for the general welfare.’ Yet, this is either immediately or remotely the sole object of every power enumerated in Article I. section 8. But, as the states were apprehensive that congress might either usurp powers not granted to them, or misuse those that were, certain powers are expressly denied to congress, and the exercise of some of those which are granted, is restricted to certain cases.

Here then two different constructions may be given to the constitution. 1. As the sole object of the formation of the union, was to provide for the general welfare of the states, it may be considered that congress have the power to adopt any measures whatever for that purpose, which they may think expedient, with the exception of such as involve the exercise of powers, expressly forbidden either wholly, or in certain cases only which are specified. If this principle of construction should be adopted, it will follow, that the enumeration of the powers expressly conferred on congress in section 8, of Article I. will have no other operation than to state in express terms, what would have been understood without them, on a fair construction of a mere power to provide for the general welfare. It will be necessary then to suppose, that this enumeration was made merely for the purpose of preventing all doubt, as to the most important of the powers, as far as the states could agree on the subject. It will be necessary, also, as these express powers alone are inadequate to the contemplated object, to imply or infer, not only all the powers which are necessary to carry the expressed powers into execution, for this the constitution grants in the sweeping clause, but also, all such powers as shall be necessary to promote the principal object of the union, viz.: the general welfare, with the exception of those powers and acts only, which are expressly prohibited in the constitution.

Under this construction, the principal question might be settled at once without difficulty. For, then, under this general power to promote the general welfare of the United States, if it were expedient to lay a duty on imports for the mere purpose of encouraging domestic manufactures, congress might constitutionally do it, because it is not forbidden in the constitution in express terms. In such case, the policy of the measure, the articles on which the duties should be imposed, the amount of the duties, and the duration of the act imposing them, would all be equally at the discretion of congress.

This construction, however, would be liable to the objection, that the constitution, after enumerating certain powers, provides that all powers not given in it to congress, are reserved to the states or the people. From this reservation, those powers are excepted which are necessary to the exercise of those which are expressly given. And therefore if this reservation has any operation at all, it must apply to all powers which are neither expressly granted in the constitution, nor necessary to the exercise of those which are so. It is true, certain powers are forbidden to congress; yet, as it was not supposed that the enumeration of denied powers was so complete, that congress might constitutionally exercise any powers not enumerated and forbidden, this reservation of powers not granted was made in express terms.

Now, it is apparent, if congress have the power to adopt measures of every kind whatever which they think expedient for the general welfare, with the exception of such only as are expressly forbidden, or depend upon the exercise of powers which are so, then the express geueral reservation of all powers not’granted, becomes wholly inoperative. Since, notwithstanding this reservation, congress will have authority to exercise any powers and do any acts, not expressly forbidden, if they should consider them conducive to the general welfare.

The other construction is grounded on the supposition, that the states being jealous of their rights and interests, and consequently desirous of guarding against the possibility of any usurpation of powers by congress, having expressed the general objects of the union in the preamble to the constitution, as a limitation of the purposes for which the powers delegated in it are to be employed, have made an enumeration of all the powers which they were willing to entrust to congress, and after having expressly forbidden the exercise of some of those powers in certain cases, and also having expressly denied certain other powers in any case, in order that there might remain no doubt at all on the subject, have finally made an express reservation of all powers not granted to congress in the constitution. The effect of this last principle of construction will be, that congress, for the general purpose of providing for the general welfare, can exercise no other powers, than those which are granted in the constitution in express terms, and such others as are so necessary to the exercise of them, that the latter, the express powers, cannot effectually be exercised without the former, the implied powers. Under this latter construction, the power of imposing duties on imports, for the sole purpose of encouraging domestic manufactures, is not authorized by the constitution. But, perhaps the reader will come to the conclusion, that, with regard to some few particulars, the decision of which, at the time of adopting the constitution, was a matter of no immediate necessity, and which, if stated in express terms, would never have received the sanction of all the states, the constitution is not so much an exemplification of a compact, in which all those who adopted it, actually agreed, as it is a form of words, expressing clearly all that was agreed, but leaving matters which they could not agree upon, couched under a veil of general words, with a reservation as to their construction. But the whole subject is submitted to the discerning reader.

Division III.
Of the Powers and Duties of the President.

The executive power of the United States, by the constitution is vested in the President. It belongs to his department therefore to execute every law, which congress have authority to make under the constitution. 9 Wheat. 733. But, if the President should mistake the construction of an act of Congress, and in consequence of it, should give instructions not warranted by the act, any aggrieved party might recover damages against the officer acting under those instructions, which though given by the President, would furnish no justification or excuse. See 2 Cranch, 119.

For the same reason, the President cannot alter the effect or operation of a law by his proclamation. But, in general, it would seem, that where a particular duty devolves on the President, but, the means to be used in the discharge of it are not pointed out, he may adopt those which are most proper for that purpose, provided they are not repugnant to the constitution, and are not forbidden by any act of congress.

It is held accordingly, that, in time of war, the President has a right to use all the customary means to carry it into effect. 1 Gal. 563.

It may be remarked here transiently, that the President, in all cases, where his official authority and duty are not brought in question, is merely a private citizen, and is bound by all the ordinary duties and obligations of one. Accordingly, it has been held that, if his testimony is necessary in any case, for the purposes of justice, he may be subpcened into court as a witness, and may be required to produce papers, if regularly notified, in the same manner as an) other individual. However, it is quite clear, that the President can generally be under no obligation to divulge or disclose any part of any documents or affairs, which the public interest requires should be’ concealed. See I Burr’s Trial, 183.

Under the constitution. (article ii. section 2) the President has a power to nominate, and by and with the consent of the Senate, appoint certain officers of high standing and great responsibility. In the same section power is given to congress, to vest the appointment of such inferior officers, as they shall think proper, either in the President alone, the courts of law, or, in the heads of departments. Congress has exercised this authority by the creation of such offices as the public occasions require, the appointments to which have been distributed accordingly.

Under the power given by the constitution to nominate and by and with the consent of the Senate, &c. it is held, that the act of nomination is entirely discretionary with the President. He may therefore nominate whom he pleases. But, unless sanctioned by the consent of the Senate, the nomination will be wholly ineffectual. But if the Senate agrees to the nomination, the appointment becomes complete; and it becomes the duty of the president to give the officer a commission. This he cannot legally refuse to do, because the constitution requires the President to commission all officers of the United States. If so, it would seem, that if the President should make a nomination to the Senate, and they should concur, he will afterwards have no right to recall his nomination without their consent.

Where the President appoints an officer, who is not removable at his discretion, the officer may demand his commission, because the appointment confers legal rights upon him, which cannot he resumed. If therefore the commission has been been made out and signed by the President, the officer will be entitled to a mandamus to the secretary of state, requiring him to deliver to the officer, his commission or a copy of it from the record, which is made by law of equal efficacy. See 1 Cranch, 137, 155.

Though the commission is conclusive evidence of the appointment, and it usually is impossible to show the appointment otherwise than by proving the existence of the commission: still, there are cases, where the appointment is plainly complete, before any commission is issued; for example, where the courts or heads of departments have authority to appoint officers, who must have their commissions from the President. 1 Cranch, 137, 155.

Where the President is intrusted by the constitution with a discretionary power, his acts in the exercise of it are not subjected to the examination of the Supreme Court of the United States. But, if a specific duty is assigned to him by law, and the rights of individuals, depend on the performance of that duty, if the President should refuse to perform it, any individual injured by the refusal, has a right to resort to the laws of his country for a remedy. See 1 Cranch, 155.

The heads of departments for the same reason, where they act merely as the organs of the President’s will, in the exercise of his legal or constitutional discretion, are, in like manner, exempt from the control of the judiciary. But, where either of them refuses to perform a particular duty assigned to him by law, and which the President has no right to forbid, (whether he actually forbids it or not) as to record a patent for land, or a commission, &c. the courts of the United States are bound to afford redress, precisely as if those duties were to be performed by any individual, who was not one of the heads of department.

It is the duty of the President to cause all constitutional laws to be enforced, and there does not appear to be any pretence of constitutional right on his part, to decline the performance of any duty assigned to him by an act of Congress, on the ground that such law is unconstitutional. The question of the constitutionality of a law, is no where submitted to him by the constitution. Such question belongs to the Supreme Court of the United States alone, and his single opinion would be a very insufficient counterpoise to the wisdom of the two houses of congress. It is true, the constitution gives him a qualified Veto on all bills which have passed both houses of congress, so far as to require, in case of his disapprobation, a majority of two thirds of each house, &c. to constitute such bill a law. But, after a law is once constitutionally passed, with or without his approbation, if he may refuse to perform the duty of putting such law in execution, he will obviously have an absolute Veto on all laws, which may call for his assistance to enforce them. This Veto is not contemplated in the constitution. If therefore a law should be unconstitutional, he incurs no responsibility by putting it in force, until the Supreme Court decide it to be so. It is very desirable, however, that any person, who considers a law to be unconstitutional, and who will suffer an injury by its being put in execution, and especially if such injury will be irreparable, should have a right to apply to some proper tribunal for process to suspend the execution of it, until the question of constitutionality can be finally settled.

And here it may not be amiss to consider what remedy is provided by the constitution, in case the President should be guilty of any official misconduct. By Article II. Sect. 4, the President, &x. &c. is made liable to impeachment for treason, bribery and other high crimes and misdemeanors. It will be unnecessary in this place to make any comments on treason and bribery and other high crimes, but in relation to misdemeanors in office, it may very properly be asked in what they can consist, as contradistinguished from the three former charges. To answer this question clearly, will be rendered more easy, by considering in what respects the President may violate his official duty. This, it is apparent, may take place in three ways, viz.; 1. By refusing to execute the laws and treaties of the United States. 2. By usurping a power not confided to him by the constitution; though in some cases, this may amount to treason. 3. By an arbitrary and corrupt use of an authority lawful in itself, but which was intended to be exercised with a single view to the public good, to answer the purposes of selfish intrigue. In England, the King is not constitutionally answerable for any of his official conduct; but, as it is presumed, that he always acts by the advice of his ministers, they are held personally responsible for all political measures adopted during their administration. Some of them have suffered capitally for such alleged misconduct. It is on this account, in part, that ministers send in their resignation as soon as they find that the majority of parliament is against them. But, in the United States, the President is answerable for his own official conduct; and is liable to impeachment for any default in the discharge of his duty.

But, though the constitution contemplates the possibility of the President’s being impeached, yet from the adoption of the constitution to the present time, no such impeachment has ever been moved for; and unless unfitness, or incapacity or a neglect of duty, is to be considered as a ground for impeachment, perhaps never will be. For, the President’s authority seems so distinctly marked out in the constitution, and he is so hemmed in by the barriers of superior as well as co-ordinate authorities, that there are but few cases, where he would be able to usurp authority without its being felt by some of the other branches of the government, which would hardly fail indignantly to repel the encroachment. If the President should’ be so indiscreet as to command an unconstitutional or illegal act to be done, it would be no excuse or justification to the officer who executed it.

It would hardly seem to afford sufficient foundation for an impeachment, if the President should make use of the discretion, which is intrusted to him by the constitution or the laws of the United States, imprudently and injudiciously. For, in any such case, the people must be content with the honest exercise of such ability, as they see fit to elevate to this high office. But, they have a right to expect integrity and fair purposes and intentions. And, therefore, if the President should pervert the powers, confided to him by the constitution, to be exercised for the promotion of the general welfare, to the purposes of favoritism, partial or local interests, political intrigue or the mere confirmation or advancement of his own authority, he would well deserve to be impeached. Because, in this way, he sacrifices the general interests of the nation, to the purpose of buying over and corrupting a party or faction. From the imperfection of humanity, a mere error of judgment, a casual omission of duty, not persisted in against conviction, ought in no case whatever, however unfortunate the consequences, to be the subject of an impeachment; but a deliberate refusal, either to execute a law, to observe or enforce the observance of a treaty, or to abide by and if officially called on, put in execution a decree of the Supreme Court of the United States, would perhaps be as gross a violation of the President’s duty, as, considering the very limited extent of his power, can well be imagined. For, by refusing to execute a law, he usurps to himself the authority of putting an unqualified Veto upon the acts of the national legislature. He also assumes a dispensing power as to the discharge of his own duty; as, if he had a discretion whether to perform it or not, and constitutes himself a judicial officer, to judge of the constitutionality of a law, when his office is merely ministerial, to execute it. For, by the constitution, whatever laws Congress see fit to enact, it is his duty to execute. To neglect it wilfully, is an assumption of authority, a denial of the wisdom of the general legislature, and a contempt of their authority. And in all cases where his assistance is required to execute the laws, if he withholds it, the laws virtually become so far annulled, and Congress is deprived of the power of legislation. For, of what avail are laws which are not enforced?

The same remark applies to treaties. Under the constitution, the President has no discretion in relation to the observance and enforcement of them. The constitution requires, that he should execute the laws; it also makes treaties, he. the supreme law of the land. Treaties consequently are laws, which he must execute, and this can be done in no other way, than enforcing their observance. The assumption of a dispensing power, in this case, may be attended with worse conquences than a refusal to execute a law of congress. For, a refusal to execute or observe a treaty, made with a powerful nation, may be the means of involving the country in a ruinous war, the consequence of which possibly might be the dissolution of the Union, by the dismemberment or the separation of the states.

If he should in like manner refuse to observe a treaty made with a nation or tribe of men, too inconsiderable to be able to redress its own wrongs, he may be the means of stamping on the national character a mark of dishonor, which, after the wrong is once done, and consequently has become irremediable, no lapse of time will ever be able to efface; but which will remain a source of regret and mortification to future generations, as a proof of the breach of faith of their ancestors. Further, would there not be just reason to apprehend, that, it might bring upon the whole nation, if they should sanction such an act in their ruler, the punishment of the oppressor, the curse of those who remove their neighbor’s landmark, the judgment upon those who unrighteously ‘slay and afterwards take possession?’ See 1 Kings, chap xxi.

The wilful perversion of a legitimate authority, however difficult it might be to establish it by proof, would also be a misdemeanor. Let it be supposed, for example, that there is a vacancy in a public office, of which the appointment is vested in the President, provided it be done by and with the advice and consent of the senate, if in session. Suppose the President postpones the nomination until after the recess of the senate, in order to usurp to himself the unqualified power of appointment, is not this in direct violation of the constitution; and, if it is done wilfully and not through mistake of his power, is it not an impeachable offence? The case would undoubtedly be highly aggravated, if the President should appoint, during the recess of the senate, a person who had previously been nominated by him to the senate, and whose nomination had been expressly negatived by them.

The appointment of certain officers, which it would be superfluous to enumerate, is vested in the President alone, by the laws of the United States, made by virtue of an article in the constitution. Many, if not all such, are removable by the President at discretion. This provision, generally speaking, is conducive to the general interest, because, for many reasons besides malversation in office, a public officer may have lost the confidence of the President, or of the public, and may also cease to be qualified to discharge its duties. Besides, as the President is considered in some measure accountable for the neglect or failure of duty of those, whom he either appoints to office, or retains in it, it would seem no more than proper, that he should have the privilege of selecting those persons in whom he is to confide. Further, if the President were considered as having no right to remove a public officer, against whom no default could be proved, the tenure of the office would be changed. It would no longer be during the discretion of the President, but during good behavior. Great latitude of removal and appointment, therefore, should be permitted. Yet, it is obvious, very great abuses may be occasioned, if such an authority may be exercised arbitrarily and corruptly, without animadversion. Suppose, for example, the President should see fit to remove an officer, without assigning any reason; here, it can never be a proper subject of inquiry, whether the President had or had not a good and sufficient reason for such a measure; because the President is under no obligation to assign reasons for the exercise of this discretion; and, if any sufficient cause for the removal can be supposed, without impeaching the officer’s character, which ought not to be done on mere surmise, such cause in fairuess should be taken to be the true one. But, if the President should see fit to assign as a reason, any cause wholly unfounded in fact, and which he had no good reason to believe, or, which was perfectly consistent with a faithful discharge of the officer’s duty, and especially, if it were any cause, which would have a tendency to reduce all officers, who are removeable at the President’s discretion, to become his mere servile instruments, as to all acts, whatever, as well without, as within the sphere of their official duties, and whether such acts are right or wrong, such measure would deserve the severest reprehension. Because, it would be a tyrannical abuse of the discretion, intrusted to him by law for the public convenience, to the gratification of his ill will or arbitrary disposition. So, though the removal of one or more particular individuals from office, without assigning any reasons, might possibly be free from any invidious remark, however unexceptionable the characters of such persons might be; yet, if any President should, as soon as conveniently could be done, after entering upon his office as President, dismiss from all offices holden during his pleasure, all the former incumbents, and replace them immediately with such persons as had been most active in procuring his election, this also should be a sufficient cause for an impeachment; because it tends to produce, not only secret and indirect, but open and palpable bribery and corruption, in bargains and stipulations for offices, not in consideration of services done for the public, but for services rendered and to be rendered to advance the interests of a party or faction ; all of which is nothing less than selling the people, and pocketing the price. If such behavior in office is not liable to impeachment, of what avail is it, that it is regarded with disgust and contempt by every man of integrity.

Yet, it must be an extreme case, that would render it expedient to impeach the President of the United States. The great delay and consequently expense, which must attend so important a trial before so numerous a tribunal as the senate, prosecuted by the still more numerous house of representatives; the neglect or suspension of other public business during the trial, which would probably be the consequence, would hardly be compensated by the removal of the President from his office, the term of which is only four years, and more or less of which must be consumed in his administration previous to the impeachment, as well as afterwards during the trial. To these may be added the danger, that the course of justice may be impeded by strong collisions of opinion between political parties, which might lead to civil commotions and disturbances, the final issue of which, it might be impossible to foresee. In most cases, therefore, it would be best to trust to the discernment and influence of the more intelligent of the citizens, at the presidential elections, to take care that a person who had once been guilty of malversation in this important office, should not have a second opportunity; and if his misdemeanor amounted to a high crime, as treason, or bribery, to make it the subject of an indictment, where the trial will be speedy, and on conviction, the court will award a suitable punishment. But if the default originates from mere incapacity, that is, a want of knowledge, experience, or natural abilities, let the people by their electors, at the regular expiration of his official term, select some other individual better qualified for the discharge of the duties of this high office, and peaceably restore the former incumbent to that station in private life, which is so graceful to honest intentions, when disqualified for those of more responsibility, by the possession of very limited abilities.

But nothing can be more unbecoming a worthy citizen, than to make any charges of this kind, against the principal executive officer of the United States, upon mere surmise or suspicion, having no other foundation, than, that the President has exercised his discretion in certain cases, and that his motives are unknown. For, in all governments, power must be confided somewhere; when so confided, it is liable to abuse; otherwise, there would be no confidence. If then the possibility of an abuse, is a sufficient foundation to infer its actual existence, who can be secure from suspicion, from calumny, or even from conviction on an impeachment?

Division IV. Of the Judiciary.

1. General remarks. 2. Of the original jurisdiction of the Supreme Court of the United States. 3. Of its appellate jurisdiction. 4. Of the respect which ought to be paid to its decisions. 5. Passage from an opinion of Vh. Jus. Jay.

1. General remarks. The judicial department of every government, is the rightful expositor of its laws, emphatically of its supreme law. 2 Pet. 524.

In every well constituted government, it has been observed, the judicial power should be coextensive with the legislative, and must be capable of deciding every judicial question which grows out of the constitution and laws. See 2 Wheat. 397. 6 Wheat. 264.

Accordingly, under the constitution of the United States, the jurisdiction of the judiciary is coextensive with the constitution, laws and treaties of the United Sates, when the subject is submitted to it in the form prescribed by law. 9 Wheat. 738. See 5 Peters, 20. 6 Wheat. 264. For that power is capable of acting, only, when the subject is thus presented. Ibid. So, under the constitution, the courts of the Unionhave jurisdiction also of all controversies, between two or more states, between a state and citizens of another state, and between a state and foreign states, citizens or subjects. 6 Wheat. 264. In the former class of cases, the jurisdiction depends on the character of the cause; in the latter on the character of the parties. For, whatever may be the subject of the controversy, these parties have a constitutional right to come into the courts of the Union. 6 Wheat. 264.

Whenever, therefore, the correct decision of a case either in law or equity, depends on the construction either of the Constitution, or the laws of the United States, or of any treaty made under their authority, it falls within the jurisdiction of the national judiciary.

For it is held, where a right is protected hy a treaty, it is sanctioned against all the laws and judicial opinions of the states, and whoever may have the right, it is protected. But, if the person’s title is not affected by the treaty, and if he claims nothing under it, his title cannot be protected by it. 5 Cranch, 344.

By the constitution, the judicial power of the United States is vested in one Supreme Court, and such inferior courts, as congress may establish. It will be remarked, that under the constitution, original jurisdiction is given to the Supreme Court in certain specified cases, absolutely; in other cases, appellate jurisdiction only is given, ‘with such exceptions, and under such regulations, as the congress shall make.’ On this subject, it is held, that where jurisdiction is not given originally, it shall be exercised by appeal. Where it is given expressly by appeal, original jurisdiction is excluded. But where original jurisdiction is given, if another tribunal may also take cognizance, the power of appeal from that tribunal is not necessarily negatived. See 2 Wheat. 397.

As the original jurisdiction of the Supreme Court is pointed out by the constitution, it cannot be lessened or enlarged by an act of congress. For congress cannot transcend the authority confided to them by the constitution. See 1 Cranch, 137, 175.

But, in addition to the powers conferred on the Supreme Court in express terms, certain other incidental powers are also necessarily implied, as resulting to all courts from the nature of their institution. Thus, to fine for contempts; to imprison for contumacy; to enforce the observance of an order, &c. are powers which cannot be dispensed with in a court; because they are necessary to the exercise of all others. See 7 Cranch, 32.

Yet, it is held generally, that the judicial power granted in the constitution, can only be exercised in the cases and the modes prescribed by congress. See 3 Cranch, 170. 1 Cranch, 9. 3 Dal. 237, 6 Cranch, 312.

2. Of the original jurisdiction of the Supreme Court. In cases affecting ambassadors, other public ministers and consuls, the Supreme Court has original jurisdiction, by the constitution. Yet, it is held, that congress are not prevented from resting a concurrent jurisdiction in inferior courts as to consuls. See 2 Dal. 297.

The Supreme Court has also original jurisdiction in cases where a state is a party. On this subject, the following distinctions seem to be settled. A state may sue another state, or the citizens of another state, or the citizens of a foreign state. A state may be sued by another state or by a foreign state. But, by virtue of the eleventh amendment of the constitution, it is established that the judicial power of the United States shall not extend to a suit brought against a state, by the citizens of a state, or those of any foreign state. This amendment however excludes the jurisdiction of the federal courts, in suits only where the state is named defendant on record. 9 Wheat. 732. For although the claims of a state may be ultimately affected by the decision of a cause, yet if the state be not necessarily a defendant, the courts of the United States are bound to exercise jurisdiction. 5 Cranch, 515.

And where a state obtains judgment against an individual, and the court rendering such judgment, overrules a defence set up under the constitution or laws of the United States, the transfer of the record into the Supreme Court, in order to inquire, whether the judgment violates the constitution or laws of the United States, does not constitute a suit commenced or prosecuted against a state within the eleventh amendment. See 6 Wheat. 264.

Under the construction, that has been given to the constitution, any foreign state may sue any of the United States, before the Supreme Court of the United States, and for this purpose, it has been held, in general, that the Supreme Court will consider as sovereign and independent slates or nations, (and consequently foreign nations) those powers, that are recognized as such by the executive or legislative departments of the government. See 5 Peters; cites 4 Cranch, 241. 4 Wheat. 64. 3 Wheat. 64.

Yet, it seems, if a domestic, dependent nation (in which light the court viewed the Cherokee Indians in this case,) should be wronged, as a nation, the Supreme Court will not entertain jurisdiction of any suit brought by them against such state. Because these Indians are not looked upon as a foreign nation, within the intent of the constitution, so as to enable them to sue the state before that tribunal. The supreme court in any such case, can neither redress past wrongs, nor redress future ones. Because to do this effectually, would require the exercise of political power, which is not intrusted to the court. See 5 Peters. 20.

But though the supreme court has original jurisdiction in certain cases under the constitution, it does not follow that congress may not also vest concurrent jurisdiction in some other national tribunal, as for instance, the circuit court; because the word original is not to be taken as exclusive. See 2 Dal. 417. 6 Wheat. 632.

3. Of its appellate jurisdiction. The appellate jurisdiction of the supreme court, may be exercised in all cases specified in the constitution, other than those, in which it has original jurisdiction; and their exercise of such jurisdiction over the state tribunals, is not restrained by the constitution. 6 Wheat. 254. The appellate jurisdiction of the supreme court, being given subject to such ‘exceptions and under such regulations as congress shall make,’ will depend on the construction given to the judiciary act and other acts of congress, taken in connexion with the constitution. Under these acts, it may be exercised, either by appeal from final decrees of the circuit courts or courts exercising the powers of circuit courts; or, by writs of error from final judgments of such courts; or, by a certificate from a circuit court, that the opinions of the judges are opposed on points stated; or, by writ of error from the final decrees or judgments of the highest court of law or equity in a state in certain cases; or, lastly by writs of mandamus, prohibition, habeas corpus, certiorari, procedendo.

But, no writ of error lies from the supreme court to the circuit court, in a criminal case. 3 Cranch, 159. 2 Dal. 197.

But, if the judges of the circuit court disagree in opinion in a criminal case, it may be carried up to the supreme court by certificate, as well as in a civil case. 7 Wheat. 42.

And no writ of error to the circuit court will lie, where the matter in dispute is not of greater value than $2000, exclusive of costs.

Under the judiciary act, the appellate jurisdiction of the supreme court extends to a final judgment or decree, in any suit in the highest court of law or equity of a state, where is drawn in question the validity of a national treaty and the decision is against its validity. So, where a statute of the United States is drawn in question in the same manner, and the decision is against its validity. So, where an authority exercised under the United States is drawn in question, and the decision is against its validity. See 1 Wheat. 304. 6 Wheat. 264.

But, it is only, where the state court decides against the claim set up under the laws, Eic. of the United States, that the supreme court has appellate jurisdiction. 6 Wheat. 598. It is not sufficient that the construction of the statute is drawn in question, and that the decision was against the party, it must appear, that his title depended upon the statute, 12 Wheat. 117. And generally, it seems, under Sect. 25th of the Judiciary act, 1789 ch. 20, the supreme court has no appellate jurisdiction, in a suit where the construction of a statute of the United States, or a commission under them, is drawn in question, unless some right, title, privilege or exemption is set up by the party, under such statute, and the decision is against it. 12 Wheat. 117.

So, where in any such case, the validity of a statute of any state is drawn in question, as being repugnant to the constitution of the United States and the decision is in favor of its validity, it must appear that the right of the party depended on its validity, otherwise the court will have no jurisdiction. On the other hand, if the validity of a statute of any of the states, is drawn in question, on the ground of being repugnant to the constitution, or to the treaties, or the laws of the United States, and the decision in the state court, is in favor of the validity of the law of the state, the supreme court has appellate jurisdiction. So, if the validity of an authority exercised under any state is drawn in question, in like manner, on constitutional ground, and the decision in the state court is in favor of its validity. 1 Wheat. 304. 6 Wheat. 264.

So, where two parties in a state court set up conflicting titles under the same act of congress, and there is a decision against the title of either, the supreme court has appellate jurisdiction. 4 Cranch, 382. 8 Wheat. 312.

But, the judgment in the state court, in any such case must be final. A judgment reversing that of an inferior state court and awarding a venire facias de novo, is not a final judgment. 3 Wheat. 433. 6 Wheat. 448. 12 Wheat. 135.

The appellate jurisdiction in cases brought from the state court, is not limited by value. 8 Wheat. 312.

So the supreme court has jurisdiction, where the parties claim under grants made by different states, though at the time of the first grant, one state was part of the other. 9 Cranch, 292. See 2 Wheat. 369.

But there must be something apparent on the record, to bring the case within the appellate jurisdiction of the supreme court, otherwise a writ of error will not lie to the highest court of law or equity of the state. 2 Wheat. 263.

It is no objection to the appellate jurisdiction of the supreme court, thauone of the parties is a state, and the other a citizen of that state. 6 Wheat. 284. And here note, that citizenship in this case means nothing more than residence.

The supreme court has no authority on a writ of error, to declare a law of a state void, on account of its collision with the constitution of that state. 3 Peters. R. 288.

Under the judiciary act all the courts of the United States have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, &c. The qualification seems to be essential; for it is held that the power of the circuit courts to issue a writ of mandamus is confined exclusively to those cases, in which it may be necessary to the exercise of their jurisdiction. 7 Cranch, 304.

The same act authorizes the issuing writs of mandamus, &c. to any courts appointed, or persons holding office under the authority of the United States. But, this latter authority is held not to be warranted by the constitution. 1 Cranch, 137, 169.

Where a district court refuses to proceed to judgment, a mandamus lies to compel it. 1 Paine, 453.

If a state court refuses to transfer a cause, under the act of congress, the circuit court may issue a mandamus. 1 Cooke, 160. So, if a collector of a port refuses to grant a clearance, a mandamus lies from the circuit court to compel him. 1 Hall L. Journal, 429.

In general, it seems, the person applying for a mandamus must be without any other remedy, and the officer to whom it is directed, must be one to whom such direction may be legally made. 1 Cranch, 137.

The supreme court has authority to issue a habeas corpus, where a person is imprisoned under the warrant or order of any other court of the United States. 7 Wheat. 38. But, it seems, in general, is restricted to cases, where the prisoner is confined under or by color of authority of the United States; or, is committed for trial by some court of the United States; or, where it is necessary to bring him in to testify. 1 Wash. C. C. Reports, 232.

If a district court should proceed in an admiralty suit, where it had no jurisdiction, a prohibition would lie from the supreme court. 3 Dal. 121.

An injunction may be issued to restrain an officer of a state, from performing an official act, enjoined by an unconstitutional statute of the state. 9 Wheat. 733.

A circuit court cannot enjoin proceedings of a state court, nor vice versa. 4 Cranch, 179. 7 Cranch, 278.

It is no objection to the granting of an injunction, that a party has a sufficient remedy at law. 9 Wheat. 733.

4. Of the respect which ought to be paid to the decisions of the Supreme Court of the United States. If, in a case depending before any court, a legislative act shall conflict with the constitution, it is admitted that the court must exercise its judgment on both, and that the construction must control the act. The court must determine whether a repugnancy does or does not exist, and in making this determination must construe both instruments. 2 Pet. 524.

Mr Justice Johnson in 1 Pet. 614, asks, ‘What is the course of prudence and duty, where cases of difficult distribution as to power and right, present themselves?’ and answers, ‘It is to yield, rather than encroach. The duty is reciprocal, and will no doubt be met in the spirit of moderation and comity. In the conflicts of power and opinion, inseparable from our very peculiar relations, cases may occur, in which the maintenance of principle, and the administration of justice, according to its innate and inseparable attributes, may require a different course; and when such cases do occur, our courts must do their duty,’ &ic.

In the establishment of this court, it is evident that the states intended to provide a supreme tribunal, not only for the decision of all cases, arising in the ordinary course, under the laws and constitution of the United States, but those also, where the rights or claims of any of the states, might seem to clash with those of others, or with the laws, constitution, rights, or authority of the general government. In these cases, the jurisdiction of the court is final and conclusive; and, from their decrees, there is no earthly tribunal to which an appeal can be made. And, though it cannot be doubted, but, that from the imperfection of human reason, they must sometimes err in judgment; yet, however important the interests may be, which are affected; however high and powerful the parties in any such case; the decision of this court must be submitted to and obeyed, even though it should be unjust. This consequence necessarily results from the theory of the government, established by the constitution. For, the decrees of all tribunals of final jurisdiction, are equally liable to the objection, that they may sometimes err. But, as erroneous decisions must be of rare occurrence; and, as it is better that an erroneous decision should sometimes occur, than that parties should have no tribunal to apply to in case of conflicting pretensions, which they are unable to settle by negociation, the consequence of which would be an appeal to force, the supreme court may be considered as the standing arbitrator, agreed upon by the states in the federal constitution, in all the cases alluded to. The decisions of this court must therefore always be regarded as made agreeably to truth and justice; and, though a state may consider a decision wrong, and its interests in consequence of it injuriously affected, still such state has no right to disregard and disobey, and far less to resist the decision of the court. For, they can have no better ground to resist, than the opinion which they entertain of the justice of their case. But, unless they are to be judges in their own cause, this amounts to nothing, because the other party may have an equally good opinion of his side of the question; and, to prevent the evil, which usually arises from such conflicting claims or pretentions, is the very object sought for in establishing a common tribunal. There is no mutuality in a general submission to arbitration, where one party considers it binding in all cases submitted, whether the decision is for or against him; and the other considers it binding only when the decision is in his own favor.

Still the decisions of the supreme court are not to be considered as conclusive evidence of absolute right, politically speaking. For, there is nothing to prevent any state, which considers itself injured by a decision of the supreme court, from urging the injustice of the decision, as a ground, either for amending the constitution, or, for repealing a law of the United States, so far as either of them may have furnished occasion for an unjust decree.

It may be observed here, that though the question, whether a certain law or other public measure, be constitutional or not, in a government of laws, would appear to be very properly submitted to the highest court in the nation; yet it does not seem quite reasonable or proper, that the decision of so important a question, should in any case depend upon the opinion of a bare majority of the judges. Since, where a law has been enacted, or other public measure adopted, with the joint sanction of the wisdom of both houses of congress, and has also received the President’s approbation, to suffer it to depend on the opinion of a bare majority of the judges, to decide whether it is constitutional or not, is to leave it in such case, in the power of the single individual, whose opinion turns the scale, to control the collective voice and wisdom of the whole government. For, it is possible that a law may be enacted unanimously by congress, and be approved of by the President, and, on a question in relation to its constitutionality before the supreme court, may be decided to be unconstitutional, by the turning voice of the least able of all the judges on the bench. It would seem more proper in every case, to presume so far on the prudence and wisdom of congress and the President, as to trust in the first instance, that they would not transcend their authority by enacting an unconstitutional law; and therefore to consider every law as constitutional, until it had been decided to be unconstitutional, by the opinions of two thirds of the judges of the supreme court, notwithstanding the opinions of a majority of their number should be against it. The constitutionality of a law of any of the states, however, has no claim whatever to be treated with the same respect. For, the majority of congress can seldom or never have any particular or partial interest to serve, in the passage of any unconstitutional law, which in its own nature must be of general application. But each state has its own private interest to consult, distinct from that of the rest, and this interest there is good reason to apprehend, may sometimes tempt the state governments to make unconstitutional attempts to enact and enforce laws, by which the rights of others may be injuriously affected. The presumption in favor of the constitutionality of a state law, consequently, must naturally be much weaker, than that of an act of congress. It would seem therefore a very reasonable distinction, to consider every state law, in relation to the federal constitution, as constitutional, so far as it affected persons and property within the state, until it had been decided to be unconstitutional by a majority of the judges of the supreme court of the United States; while a law of the United States should be considered as constitutional, until decided not to be so, by a majority of two thirds of the judges of the same tribunal.

The increase of the States in population and wealth, and consequently in political power, is so rapid, that, in all probability before many years will have elapsed, it will be found necessary to adopt some new measures, in order to give the supreme court more weight and strength, in proportion not only to its respectability, as the highest tribunal of justice in the United States, but as the best and firmest barrier, against any usurpation, or tyrannical abuse of political power. It will be found expedient to enable this court to enforce its righteous decrees instantly, in cases of oppression, arising from an abuse of power in violation of the constitution. The life, liberty and property of every citizen of the United States should be placed within the protection of this court so effectually, against oppression by an unjust exercise of political power, that after a decree in his favor, neither of them should continue in jeopardy a day longer than may be necessary to give notice of the judgment of the court. In the theory, the beau ideal of the federal government, no doubt this was intended; and, by the laws of the union it would seem, that an insurrection or levying of troops with or without a pretence of political power, for the purpose of resisting the execution of a decree of the supreme court of the United States, must be treasonable. Yet, where there is no other resistance to the decree of this court, than what is implied in a simple act of disobedience to it, the penality of the clause of non omittas, should be of a severity proportioned to the importance of the case. For, what can be a greater disgrace to the government of the Union, than to have the decrees of its highest tribunal openly contemned and disregarded?

To relieve the judges of this tribunal, of part of the great responsibility, which is placed upon them; to preserve this court as incorruptible, impartial and independent, as it always has been ; to protect it from the obloquy, which upright decisions always occasion in the unjust and unprincipled; some such measures as the two following would seem to be advisable to be adopted before many years. 1. To increase the number of judges as high as twelve, at least. 2. To establish a seniority among the states, so that, as vacancies hereafter arise on the bench, each state in its turn may have the appointment of one of the judges of the supreme court. The appointment might be entrusted to the Governor by and with the consent of the senate of each state. It would be found expedient, also that the Union should be classed under four divisions of six states each; and it would be sound policy for the prevention of jealousies, to take care that two judges should never be taken from the same division in succession. This would prevent any predominance in the supreme court, of the North over the South, or of the East over the West, and vice versa.

In general the policy of having one department of the general government, depend upon another co-ordinate department, for the appointment of its officers, seems liable to exception, if it is intended to be, as it ought to be, perfectly independent. For the same reason, they ought not to be liable to be removed by an address of both houses. For, while they are exposed to this danger, if any political question should be brought before them, in which the dominant political party in congress for the time being, has any strong interest or bias, the judges will be liable to lose their offices, if their views of justice do not coincide with the feelings of a majority of congress. For the same reasons, they ought not to be under any obligations to the President for their nomination. All such relations are supposed to have a tendency to diminish the independence of a judge, and consequently his impartiality, in cases where the President’s views, feelings or interests are concerned in any case brought before the court; and though such suspicions, it is believed, are almost invariably groundless, yet a judge ought not to be placed in a situation, where he may feel an inducement ungratefully to decide against one to whom he is under obligations and whom he believes to be in the right, or otherwise be exposed to the calumny and obloquy of the illiberal, as if he had sacrificed justice to partiality.

The supreme court of the United States is the firmest stay and support of the Union. Being the least swayed by party considerations, it is the most upright, and consequently, in a literal as well as figurative sense, it is the most firm and stable. Having its foundation in principle, and not in faction, ambition, love of popular applause or selfish interests, it is the most to be relied on of all the departments of government. Every thing possible therefore should be done to support its dignity and independence. For, while this department of the general government is kept spotless and incorruptible, and while it has power to enforce its decrees; though intrigue and corruption should taint every other part of the government, the union of the states, and the constitutional or political rights of each individual citizen, will still remain unviolable.

5. This Chapter it is believed cannot be better terminated, than by the quotation of the following passages in the opinion of Ch. Jus. Jay, in the case of Chisholm v. Georgia.

‘Prior to the date of the constitution, the people had not anynational tribunal, to which they could resort for justice. The distribution of justice was then confined to state judicatories, in whose institution and organization the people of the other states had no participation, and over whom they had not the least control. There was then no general court of appellate jurisdiction, by whom the errors of state courts, affecting either the nation at large, or the citizens of any other state, could be revised and corrected. Each state was obliged to acquiesce in the measure of justice, which another state might yield to her, or to her citizens, and that even in cases, where state considerations were not always favorable to the most exact measure. There was danger, that from this source animosities would in time result; and as the transition from animosities to hostilities was frequent in the history of independent states, a common tribunal for the termination of controversies became desirable, from motives both of justice and policy.

Prior also to that period, the United states had, by taking a place among the nations of the earth, become amenable to the laws of nations, and it was their interest, as well as their duty to provide, that those laws should be respected and obeyed. In their national character and capacity, the United States were responsible to foreign nations for the conduct of each state relative to the laws of nations, and the performance of treaties, and there the inexpediency of referring all such^questions to state Courts, and particularly to the courts of delinquent states, became apparent. While all the states were bound to protect each, and the citizens of each, it was highly proper and reasonable, that they should be in a capacity, not only to cause justice to be done to each, and the citizens of each; but also to cause justice to be done by each, and the citizens of each; and that, not by violence and force, but, in a stable. sedate, and regular course of judicial procedure.

These were among the evils against which it was proper for the nation, that is the people of all the United States, to provide by a national judiciary, to be instituted by the whole nation, and to be responsible to the whole nation.

Let us now turn to the constitution. The people therein declare that their design in establishing it, comprehended six objects. First, To form a more perfect union. Second, To establish justice. Third, To insure domestic tranquillity. Fourth, To provide for the common defence. Fifth, To promote the general welfare. Sixth, To secure the blessings of liberty to themselves and their posterity.

It may be asked, what is the precise sense and latitude, in which the words ‘ to establish justice,’ as here used, are to be understood? The answer to this question will, result from the provisions made in the constitution, on this head. They are specified in the second section of the third article, where it is ordained, that the judicial power of the United States shall extend to ten descriptions of cases, viz. First, To all cases arising under this constitution; because the meaning, construction, and operation of a compact, ought always to be ascertained by all the parties, or by authority derived only from one of them. Second, To all cases arising under the laws of the United States; because, as such laws constitutionally made, are obligatory on each state, the measure of obligation and obedience ought not to be decided and fixed by the party, from whom they are due, but by a tribunal deriving authority from both the parties. Third, To all cases arising under treaties made by their authority; because, as treaties are compacts made by, and obligatory on, the whole nation, their operation ought not to be affected or regulated by the local laws or courts of a part of the nation. Fourth, To all cases affecting ambassadors, or other public ministers and consuls; because, as these are officers of foreign nations, whom this nation are bound to protect and treat according to the laws of nations, cases affecting them ought only to be cognizable by national authority. Fifth, To all cases of admiralty and maritime jurisdiction, because as the seas are the joint property of nations, whose right and privileges relative thereto, are regulated by the law of nations and treaties, such cases necessarily belong to national jurisdiction. Sixth, To controversies to which the United States shall be a party; because, in cases in which the whole people are interested, it would not be equal or wise, to let any one state decide and measure out the justice due to others. Seventh, To controversies between two or more states; because, domestic tranquility  requires, that the contentions of states should be peaceable terminated by a common judicatory; and because, in a free country, justice ought not to depend of the WILL of either of the litigants. Eighth, To controversies between a state and citizens of another state; because in case a state, that is all the citizens of it, has demands against some citizens of another state, it is better that she should prosecute their demands in a national court, than in a court of the state to which those citizens belong; the danger of irritation and criminations arising from apprehensions and suspicions of partiality being thereby obviated. Because, in cases where some of the citizens  of one state, have demands against all the citizens of another state, the cause of liberty and the rights of men forbid, that the latter should be the some judges of the justice due to the latter; and true republican government requires, that free and equal citizens should have free, fair, and equal justice.*

Ninth, To controversies between citizens of the same state, claiming lands under grants of different states; because, as the rights of the two states to grant the land, are drawn into question, neither of the two states ought to decide the controversy. Tenth, To foreign states, citizens or subjects; because as every nation is responsible for the conduct of its citizens towards other nations; all question touching the justice due to foreign nations, or people, ought to be ascertained by, and depend on national authority.

*This last clause refers to the ground of the particular point decided in the case, Chisholm v. Georgia, viz., that under the constitution a state might be sued by a citizen of another state. In consequence of this decision the eleventh amendment of the constitution was made.

Continued in CHAPTER IV. Of the Powers delegated to the State Governments, by the people of each State respectively.

See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers

RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights

One thought on “RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution

  1. Pingback: The Importance of Free Speech and The Free Press in America | Captain James Davis

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