$86

division of power was recognized and incorporated pected of felony, though the original suspicion be into all the constitutions of the United States that not in himself, but in the party that prays his warwere framed immediately after the declaration of rant; because he is a competent judge of the probability independence. It was afterwards engrafted into the offered to him of such suspicion. But in both cases it constitution of the United States; and from the is fitting to examine, upon oath, the party requiring writings of the "Federalist," and other political a warrant, as well as to ascertain that there is a feloessays of that time, it appears that the judicial ny or other crime committed, without which no warpower, spoken of in the constitution of the general rant should be granted, as also to prove the cause government, is deduced from that which was under- and probability of suspecting the party, against stood by the political and legal writers of England whom the warrant is prayed. This warrant ought as one of the members or the instruments of the to be under the hand and seal of the justice; should set forth the time and place of making, and the English constitution. It is remarkable, however, that most of the wri- cause for which it is made, and should be directed ters on that constitution, enumerate the three con- to the constable or other peace officer, (or it may stituent branches of that government as consisting be to any private person by name) requiring him to of the king, the lords, and the commons; they all bring the party either, generally, before any justice describe the j ial authority as a part of the exe-of the peace for the county, or only before the jusA general warrant cutive or ro branch; as a subdivision of one of tice who granted it; the warrant in the latter case the three principal divisions of power. The primary being called a special warrant. chocks and balances of the English constitution are to apprehend all persons suspected, without naming founded on a separation and distinction of classes or particularly describing any person in special and orders of men; those of the American constitu- is illegal and void for its uncertainty; for it is the tion spring from the division of the forms, modes and duty of the magistrate, and ought not to be left to the principles of action. The American primary political officer, to judge of the ground of suspicion--4. Blac. checks and balances are derived from the division, Com. 289, 290. noi of men into classes, but of power into the modes by which it operates as the legislative, the judicial, and the executive. Those of the English constitution are artificial, incongruous, and the perpetual source of jealousy and strife; those of the United States are rational, natural, and peaceful in all their operations.

?

a

But, since it is clear, that the judicial power, as branch of the American government, was derived from the English notion of judicial power, considered as a portion of the executive branch of that government, it will decide the question now under discussion, to ascertain with precision, what was meant by such judicial power?-and whether the incipient and ancilliary judicial act of a justice of the peace, in deciding on the propriety of granting a warrant to arrest a person accused of a breach of Jaw, was a portion of that judicial power?

Coke, Blackstone, Delolme, and other writers on the English law and constitution, after describing the judicial power as a part of the executive branch of the government, state that every portion of the executive office of the chief magistrate, called the judicial power, has been completely and entirely delegated to a distinct set of courts and officers, who are, in one way or other, independent of the king and responsible for their conduct-2. Inst. 71 1. Bluc. Com. 266-Delolme 233. They lay great stress upon the advantages resulting from this total transfer of judicial power to a distinct order of officers; particularly as relates to the personal security and liberty of the citizen, in the administration of criminal justice. And, when treating in detail of criminal prosecutions, they point out the various forms and methods by which truth and impartiality may be attained, so as effectually to secure the citizen from unreasonable arrests, imprisonment, persecution, and oppression.

"We are now, says Delolme, to treat of an article which, though it does not in England, and indeed should not in any state, make part of the powers which are properly constitutional, that is, of the reciprocat rights by means of which the powers that concur to form the government constantly balance each other, yet essentially interests the security of individuals, aud, in the issue, the constitution itself, I mean to spek of criminal justice. But, previous to an exposition of the laws of England on this head, it is necessary to desire the reader's attention to certain considerations"-book 1, ch. 12. "After having offered to the reader, says the author, in the preceding chapter such general considerations as I thought necessary, in order to convey a juster idea of the spirit of criminal judicature in England, and of the advantages peculiar to it, I now proceed to exhibit the particukers. When a person is charged with a crime, the magistrate, who is called in England a justice of the peace, issues a warrant to apprehend him; but this warrant can be no more than an order for bringing the party before him: he must then hear him, and take down in writing his answers, together with the different informations. If it appears on this examination, either that the crime, laid to the charge of the person who is brought before the justice, was not committed, or that there is no just ground to suspect him of it, he must be set absolutely at liberty; if the contrary results from the examination, the party accused must give bail for his appearance to answer the charge-unless in capital cases-for then he must, for safer custody, be really committed to prison, in order to take his trial at the next sessions."-B. 1, ch. 13.

"I come now, says Hale, to consider of arrests of felons, or persons suspected of felony, by warrant or precept-namely, not of precepts that issue upon matter of record, as upon appeals or indictments, "We are now, says Blackstone, to consider the which regularly are to be by writ, but such warrants And herein regularly all courts and persons, regular and ordinary method of proceeding in the as are preparatory to it, or for conservation of the courts of criminal jurisdiction; which may be dis-peace. tributed under twelve general heads, following each that have judicial power by the common law, or by act other in a progressive order-viz. 1. Arrest; 2. Com- of parliament for the conservation of the peace, have mitment and bail; 3 Prosecution; 4. Process; 5. Ar-power to grant warrants for arresting of felons, but raignment, and its incidents," &c. And, speaking such as are simply ministerial and have no jurisdicof the arrest, he says "that a justice of peace hath power to issue a warrant to apprehend a person accused of felony, though not yet indicted, and be may also issue a warrant to apprehend a person sus.

tion, as constables, cannot issue warrants for that purpose, but must do their office either alone or with others called to their assistance."-2. Hale's P. C. 105..

And where a person had been arrested and impri-jof the people, flowing from such a separation and soned by a warrant, under the king's own hand, he division of power, has been fully-explained, not was released; because it was held, that the whole only by many foreigners, but also by some of the of the judicial power, incident to his office, having most eminent of our countrymen. Mr. Taylor, in his been delegated to others, he could not grant such work entitled "An enquiry into the principles and a warrant, 1 Bac.Abr. 607; Fortesque's Rep. pref. xii. policy of the government of the U. States," mainBut this portion of judicial power, to issue a war tains it to be one of the best of the principles of our rant to apprehend a person on a criminal charge, excellent constitution. "In order, says the Federalwas not yielded by the kings of England, until after ist, to lay a due foundation for that separate and di many and great struggles; particularly by the sove-tinct exercise of the different powers of government reigns of the house of Stuart. This subject was, which, to a certain extent, is admitted on all hands for the last time, elaborately investigated and dis to be essential to the preservation of liberty, it is cussed, just before the American revolution, in the evident, that each department should have a will of Celebrated cases relative to general warrants; and its own; and consequently should be so constituted in the case of seizure of papers of Entick vs. Car-that the members of each should have as little rington, lord Camden, who delivered the opinion of agency as possible in the appointment of the mem the court, in the year 1765, throughout, speaks of bers of the others"-No $51. In short, this maxim the granting of a warrant to arrest and detain a per- which requires the separation of the departments son, on a criminal accusation, as a judicial act; and of power, it was believed, was so universally underas a very important portion of that judicial power, stood and approved, that it would be sufficient to which could not with consistency and safety be notice it in the most concise terms for the purpose entrusted in the hands of the king, the secretary of of shewing how fully opposed it was to the passing state, or with any other than those who properly of an act of congress, which should, in itself, con came under the denomination of judicial officers-fer judicial power and also designate the person 11. Stute Trials, 313. who was to assume and exercise it.

And the judicial power of the United States, con But this constitutional maxim, thus merely sidered either in a legal or political aspect, or in referred to as one, which obviously stands in the whatever way it may be exercised, or whosoever way to prevent congress from transferring the judi may be clothed with it, is always spoken of and al- cial power of the nation to any of the officers of the lowed to be of precisely the same nature, in all re-states, has been treated as an interpretation of that spects whatever, as that of England. The only instrument not only inadmissable, but even ridicu difference between the two, which can be deduced lous-"But, it is said, it may, perhaps, be insisted, from any author, consists, not in the nature of the that though the constitution does authorize con. power itself, but in the place which it occupies in gress, by law, to vest the appointment of inferior the constitution of the nation. In that of England officers in the president alone, in the courts of It does not "make a part of the powers which are law, or in the heads of departments, it does not properly constitutional;" in America it forms one of authorize congress, though both houses and the the constituent branches of the government-2 Dall. president should unanimously concur, itself to ap297, 384-3. Dull. 42, 318, 473-4. Dall. 429, app.point immediately by law. This would really be con xxvi-1. Cran. 10, note 165-2. Cran. 179-3. Cran. struing the constitution like an old plealing with161, 163, note, 173, 335-4. Cran. 23, 93, 216-out allowing the benefit of the statute of jeofails5. Cran. 185-7. Cran. 32-1. Gallis. 488-Brack. qui cadet a syllaba, cadet a tota causa. A rational L. M. 305, 389. construction, it would seem, would authorize congress Upon the whole, then, it is clear, that the judi- to do itself what it can, at its pleasure, authorize an cial power spoken of in the constitution of the U. inferior body or an individual to do." By the second States, and the judicial power of the common law, section of the second article of the constitution it are, in all respects, the same; and that the granting is provided, in conformity with the maxim which re of a warrant by a justice of the peace is one of those quires the separation of the departments of power, preparatory, incipient and ancillary judicial acts, that the president "shall nominate, and by and with which is a portion of that judicial power which the advice and consent of the senate, shall appoint forms one of the great branches of our government; ambassadors, other public ministers, and consuls, and being such a judicial act, it can only be per-[judges of the supreme court, and all other officers formed by a judge or justice of the United States, of the United States, whose appointments are not and not by any state officer whatever, as such. herein otherwise provided for, and which shall be "But, as has been said, it certainly will not be established by law. But congress may, by law, vest contended, that congress can, by a mere legislative the appointment of such inferior officers as they act, create the office and officer together-ordain think proper in the president alone, in the courts and establish the court and the judge at once-and of law, or in the heads of departments." And is thus deprive the executive branch of its right of it possible, that any one could seriously conceive, appointment; and so destroy that most valuable that a rational construction of this clause would among the checks contained in the constitution-authorize congress itself to make the appointments which provides that the law and the executors of to office as therein mentioned? The assertion is too the law shall emanate from different sources, so as grossly absurd to need reply of any sort. to countervail the irregularities of each other"- But it is said, that "it may be safely admitted And for this purpose one of the great fundamental that congress cannot directly by law appoint an maxims of all the American constitutions requires officer whom it can authorize an individual to ap the separation of the departments of power; and point, and yet the difficulty will not occur in this that the making of laws, the judging of the appli- case. This is not the case of an appointment. The cation of laws, and the execution of them, should magistrates of the state are not, by the act of connot be united and invested in the same persons; but gress, constituted officers of the United States be separated and confided to different persons-they are merely authorized to do a certain act." An who should, also, as far as practicable, be clothed office is defined to be, "that function, by virtue with authority by different means. whereof, a man hath some employment in the affairs The very great security to the rights and liberties of another, as of the king or another person"

L. D. verb. office. It seems to be difficult to dis- buse of power intended to spring out of such setinguish between that which is thus defined to be paration.

an office and the being "merely authorized to do cer- In the case of the transfer of power by act of contain acts" The author of the 81st number of the gress to the officer of a state, such person has no Federalist, who was himself a distinguished nem-other legal existence as an officer of the union, than ber of that convention which formed the constitu- that which is given him by the law in which his pow tion, appears to have been strongly impressed with aer and person are both disignated; he is, therefore, belief that the being thus "merely authorized to do a appointed by the law, officially created and commiscertain act” would amount to an appointment, which sioned by it-In the one case, the rule is laid down there were some very substantial reasons should not as prescribed by the constitution, and the officer is be made. But why, it is asked, (says he) might not appointed according to a mode also prescribed eithe same purpose have been accomplished by the ther directly or indirectly, by the same constitution, instrumentality of the state courts? This admits but in the other case, the rule is laid down, and the of different answers-Though the fitness and com-person, who shall execute it, is designated by an ofpetency of these courts should be allowed in the ficial description, which is unknown to the constitu utmost latitude, yet the substance of the power intion and laws of that sovereignty, whose legislative question may still be regarded as a necessary part rules he is authorized to execute. The legislature may of the plan, if it were only to authorize the national create an office, and the right of appointing the offilegislature to commit to them the cognizance of cer will vest in the executive, or in the manner decauses arising it of the national coRstitution. Toclared by the constitution; or it may create a corconfer upon the existing courts of the several states poration, with the assent of those to be incorporated, the pair of determining such causes, would perhaps and prescribe the manner in which the corporators be as much "to constitute tribuna's,” as to create new shall elect or appoint their officers; and it may lay courts with the like power. But ought not a more down rules by which each class of officers shall be direct and explicit provision to have been made governed in the administration of justice, or in the in favor of the state courts? There are, in my opinion, substantial reasons against such a provision," &c. "That it is not, however, an appointment in the sense of the constitution will, it is said, be proved by reference to the undisputed practice of some of the state governments."

conservation of the peace. But the legislature cannot, constitutionally pass a law declaring, that such and such persons, designating them by name, places of residence, professions, trades, or commissions, (held under other sovereignties) shall execute such law. In this respect their can be no difference be"By the constitution of South Carolina, justices of tween saying, that John, Thomas, &c. shall execute the peace shall be nominated by the senate and the law, and declaring that all those men who hold house of representatives, jointly, and commissioned by the governor--Yet the clerks of the courts, the wardens of the city of Charleston, and many other officers of the state, are vested by acts of the legis lature with the powers of justices of the peace. The like case probably occurs almost in every state of the union, and the argument of unconstitutionality, which we are now examining, will equally apply to

them all."

such a commission in such a state shall execute the laws of the union; because, the determination on, or the execution of the legislative rules of the sovereignty is not in such case refered to the judicial or executive power of the same sovereignty; but to persons designated by the legislature, and who derive their authority wholly from its acts, and who are not commissioned as those arc, who, alone, the constitu tion declares, shall be intrusted with its judicial or There is not the least doubt, that this case does executive power Each constitution of the union has actually occur in every state of the union; and there three separate departments of power; to each legisas little doubt, that it is perfectly correct and conlative body, there is assigned a judiciary, who shall stitutional-And this is the case cited to prove, that apply, and an executive, who shall execute the laws the legislature of one sovereignty may constitutionally to permit those laws to operate by any other means promulged by such legislative body: and, therefore, transfer its judicial power to the officers of another so than those constitutionally disignated agents, is to vereignty! Before the total dissimilarity of these suffer its best principles and primary checks and two cases are exhibited in contrast, it will be proper balances to be totally abolished.

is

to set down a few undisputed fundamental principles-All the American constitutions are predicated But the great principles contended for, as will be pon the separation of the departments of power; seen by adverting to the question propounded as all of them prescribe the manner in which their se-the text to these observations, are not confined to veral officers shall be appointed, not one of them au mere judicial powers and oficers, it embraces all, thorizes an appointment to be made in the form of legislative and executive as well as judicial power.— a mere legislative act: The legislatures of each They are, that “every government ought to possess the state of the union has the power either according to means of executing its own provisions, by its own authe constitution or otherwise to establish courts of thority; that the peace of the whole, ought not to be left justice, and to authorize such courts to appoint thei. at the disposal of a part; that the general government own officers, clerks, &c. And the legislature of must carry its agency to the persons of the citizen; that each state also has the power to create and it must stand in need of no intermediate legislations; establish bodies politic and corporate with the assent but must itself be empowered to employ the arm of the of those to be incorporated, and may invest such ordinary magistrate to execute its own resolutions; that corporation with the power to make bye laws, it must have been the intention of the famers of the goand to appoint or elect its own officers, who are tovernment of the union, that it should be provided with execute the municipal laws of the state and the bye powers fully commensurate to those great objects; and laws of the corporation within its own boundaries. also, that those powers should be so distributed among All these officers derive their power from the same its own agents, us to enable it to act from itself by its sovereignty, yet they are neither those who made nor own motion; and not through the instrumentality of any the mere agents of those who made the law; they are other independent sovereignty." clothed with power by means different from those The authority of a justice of the peace to grant a of the legislators, and thus the separation of power warrant to arrest, it is asserted, is a ministerial of is preserved; and also the political check to thelexecutive act.-Let it be conceded, that it unques

tionably is so-And what then? The ground is purpose of relieving the nation from all reliance on somewhat different, the scene is shifted-But is any the governments of the states, and from the neces. thing gained? Change only a few words, and all sity of resorting to their agency in any cases whatthe argument against the transfer of judicial power ever, yet the judicial power of he u don has hither. to a state officer, instead of being answered or to been but partially organize and the judiciaries weakened, rises again with renewed and added of the states have, of choice, been used as the only strength. The first section of the second article of instruments for executing a great portion of the laws the constitution declares, that "the executive power of the nation. It is believed, that here is no position shall be vested in a president of the United States of which the history of these states will furnish more of America," and the same article then proceeds to ample, conclusive, and unanswerable proofs, than describe in what the executive power shall consist, that "the necessary dependence, practically, of the &c. Here then is the executive power of the Unit-general government on the states, in many parti ed States. The congress have no right to prescribe culars, is one of the points in which its weakness where this executive power shall or shall not vest; has been most obvious and most lamente.l." they may create executive offices and duties; but We are not without the most impressive exam. they must be filled and discharged in the manner ples of how much may be effected by mere precedent, prescribed by the constitution, and in no other way. whether of the use, the abuse, or the absolute neAnd so we may proceed step by step to apply all glect* of the provisions of a constitution. If, how the arguments that have been advanced respect-ever, example and precedent have exhibited in a ing the judicial power to this of the executive. strong point of view the uses of our constitution; And the same kind of argument may be used that it is capable of a simplicity, and facility of ope against the capacity of congress to transfer its legis-pation far superior to what was expected; that it lative powers to the legislative functionaries of one possesses energies commensurate to the most peri". of the states, or any other sovereignty; for the first ous seasons, and excellencies infinitely superior to section of the first article of the constitution having any form of government ever before known; if the declared, that "all legislative powers herein granted, experimental development of its perfections has shall be vested in a congress of the United States, drawn about it the attachment and warmest affec which shall consist of a senate and house of repre- tions of the people; the sacred and unerring oracles sentatives," congress can have no more right to au- of experience have also exhibited some of its weakthorize the legislature of a state to make laws for the inesses and failings, in a very melancholy point of union than it has to authorize any state officer to ex view. They prove, incontestibly, that however the ercise judicial functions, or to execute the laws of the influence of the general government may require to general government; for and in the name of the Unit-be constantly watched in some respects, to prevent ed States. our inestimable institutions from falling into an inThe denying to congress the right to invest the evitable and slow decay, yet that in its conflicts with justices of the peace of the states with power to those of the states immediate and general dissoluexecute the laws of the union has been considered tion and ruin present themselves, as certain and as leading to consequences the most alarming; as unavoidable. Experience has shewn, that in those likely to involve the nation in expences the most cases where the general government had the means enormous; and, in addition to the patronage of the and could, and did resort to the same methods of executive already too strong, as arming that branch executing the powers, with which it was invested, with one, that will be altogether irresistible. It is that are possessed and exercised by the governasserted, that "without the aid of the ministe- ments of the several states, the opposition from disrial officers of the states, to have the laws of orderly, refractory and seditious individuals was the United states effectually executed against easily overcome, and harmony soon restored; but a few offenders, (probably not one hundred in where a conflict arose between the government of a year in all the states,) it would be necessary the union and a state, the powers of the nation were to appoint and scatter over the vast territory paralized, the subversion of the whole was threatmany thousand of justices of the peace, coro-ened, and there seemed to be only the awful alter ners, constables, &c. The attempt to execute the pow-native left of "substituting violence in the place of er, would be as impracticable as it would be ridicu-law, or the destructive coercion of the sword in the lous." There appears to be no reason to doubt the place of the mild and salutary coercion of the magis sincerity of such an assertion. In reply to a fancy tracy." Since precedent and example are so power. so buoiant it would, however, be altogether idle to ful in developing and expounding, in fortifying and offer any thing like fact, calculation or argument. undermining written constitutions, and in establish Yet one cannot, but wish, that the patriotic mind ing unwritten ones, they should be recollected and may somewhere find relief, from the terrible forbo-looked into with the most careful attention. dings with which such melancholy flights are too A frequent recurrence to first principles, also, is recommended by some of the most sage political I have always been a decided advocate for confin-writers, and has been adopted as a fundamental ing the powers of the general government strictly axiom by some of the constitutions of the states. within the limits assigned to them. The federal To rely on state officers, who are no way respongovernment was, most certainly and obviously in-sible to the general government, for the execu tended to be a system complete within itself, and tion of the laws of the United States would be a in all its parts. Its power in all respects, those over departure from the first principles of the national the militia excepted, where it acts not from itself, constitution; and "would be, as has been said, to but by the instrumentality of the states, are amply restore the theory, principles and practice of the commensurate to all its objects. But in order, that old articles of confederation; the evils of which, its benefits should be fully understood and felt, it

apt to fill it.

should be completely organized in each of its bran. *By the constitution of Virginia the executive is ches, in its judicial, no less than in its executive, its required to appoint a secretury; yet no such officer senate and house of representatives. Strange how-has existed in that state since the death of the one ever as it may seem, it is nevertheless true, that al- in office at the formation of the constitution, which though this government was formed for the express happened during the revolution.

this respect, particularly, among many others, this constitution was intended to remove." The evils here alluded to seem to have been, in a great part, forgotten, or to be now considered as merely imaginary. It will be well, therefore, to recur to the actual history of our country and enumerate some of them. This enumeration I shall extract literally from the papers called the Federalist, where they may be found very perspicuously displayed and ably elucidated.

each other, till bounties grew to an enormous and insupportable size. The hope of a still further increase, afforded an inducement to those who were disposed to serve to procrastinate their enlistment; and disinclined them from engaging for any considerable periods. Hence slow and scanty levies of men, in the most critical emergencies of our affairs

short enlistments at an unparalleled expence→ continual fluctuation in the troops, ruinous to their discipline, and subjecting the public safety fre. quently to the perilous crisis of a disbanded army. Hence, also, those oppressive expedients for raising men, which were upon several occasions practised, and which nothing but the enthusiasm of liberty would have induced the people to endure.”

"The great and radical vice, says the Federalist, in the construction of the existing confederation, is in the principle of legislation for state governments, their corporate or collective capacities, and as contradistinguished from the individuals of whom they "A circumstance, which crowns the defects o consist. Though this principle does not run through all the powers delegated to the union; yet it per- the confederation, remains yet to be mentioned. vades and governs those on which the efficacy of The want of a judiciary power-Laws are a dead the rest depends. There is an essential difference letter, without courts to expound and define their between a mere non-compliance and a direct and ac true meaning and operation. The treaties of the tive resistance. If the interposition of the state United States, to have any force at all, must be legislature be necessary to give effect to a measure considered as part of the law of the land. Their of the union, they have only not to act, or to act eva true import, as far as respects individuals, must, sively, and the measure is defeated. This neglect like all other laws be ascertained by judicial deof duty may be disguised under affected but un- terminations-To produce uniformity in these desubstantial provisions, so as not to appear, and, of terminations, they ought to be submitted in the course, not to excite any alarm in the people for last resort, to one supreme tribunal-And this trithe safety of the constitution. The state leaders bunal ought to be instituted under the same autho may even make a merit of their surreptitious invarity, which forms the treaties themselves. These sions of it, on the ground of some temporary con- ingredients are both indispensable." venience, exemption or advantage."

"The result of these observations to an intelli

"The next most palpable defect of the existing gent mind must be clearly this, that if it be pos confederation, is the total want of a sanction to its sible at any rate to construct a federal government Jaws. The United States, as now composed, have capable of regulating the common concerns, and no power to exact obedience, or to punish disobe-preserving the general tranquility, it must be dience to their resolutions, either by pecuniary founded, as to the objects committed to its care, nuicts, by a suspension or divestiture of privileges, upon the reverse of the principles contended for by or by any other constitutional means. There is no the opponents of the proposed constitution. It express delegation of authority to them to use force must carry its agency to the persons of the citi It must stand in need of no intermediate against delinquent members. The want of such a zens. right involves, no doub, a striking absurdity. The legislations; but must itself be empowered to emUnited States afford the extraordinary spectacle of ploy the arm of the ordinary magistrate to execute The majesty of the national aua government destitute, even of the shadow, of con its own resolutions. tutional power to enforce the execution of its thority must be manifested through the medium of the own laws." courts of justice. The government of the union, like that of each state, must be able to address itself immediately to the hopes and fears of individuals; and to attract to its support, those passions, which have the strongest influence upon the human heart. It must, in short, possess all the means, and have a right to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the governments of the particular states.”

"The principle of regulating the contributions of the states to the common treasury, by quotas, is Another fundamental error in the confederation. Its repugnancy to an adequate supply of the national exigencies has already been pointed out, and has sufficiently appeared from the trial which has been made of it. I speak of it now solely with a view to equality among the states. Those who have been accustomed to contemplate the circumstances, which produce and constitute national wealth, must be satisfied that there is no common standard or barometer by which the degrees of it can be ascertained."

From the first moment the American people took up arms against the despotic encroachments upon their rights by the British king, there was but one common opinion among them as to the importance, utility and necessity of union. The war "In addition to the defects of the existing fede- of the revolution not only suggested a union to the ral system, before enumerated, the want of a power states, its nature and exigencies actually effected 10 regulate commerce, is, y all parties, allowed to be a complete one, in fact, long before its principles of the number. It is indeed evident, on the most were reduced to certainty by a solemn compact.superficial view, that there is no object, either as The nature and extent of the powers, which were it respects the interests of trade or finance, that thus tacitly, and from necessity vested in congress, more strongly demands a federal superintendance." have been several times elaborately discussed be "The power of raising armies, by the most obvi-fore judges, who had been themselves active and ous construction of the articles of the confederation, distinguished agents in the establishment of Ameri is merely a power of making requisitions upon the can liberty; and it has been uniformly held, that states for quotas of men. This practice, in the course of the late war, was found replete with obstructions to a vigorous, and to an economical system of defence. It gave birth to a competition between the states, which created a kind of auction for men. In order to furnish the quotas required of them they outbid

the powers of congress antecedent to the articles of confederation, which was sent to the states for ratification on the 17th November, 1777, and finally acceded to by Maryland on the 1st of March, 1781, must necessarily be supposed to have been co-exten. sive with the great objects which America then bad