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THE PRINCIPLE OF INTERPRETATION
THIS instrument contains an enumeration of powers expressly granted by the people to their government. It has been said that these powers ought to be construed strictly; but why ought they to be so construed? Is there one sentence in the Constitution which gives countenance to this rule? In the last of the enumerated powers, that which grants expressly the means for carrying all others into execution, Congress is authorized to make all laws that shall be necessary and proper for the purpose. But this limitation on the means which may be used is not extended to the powers which are conferred, nor is there one sentence in the Constitution which has been pointed out by the gentlemen of the bar, or which we have been able to discern, that prescribes this rule. We do not therefore think ourselves justified in adopting it. What do gentlemen mean by a strict construction? If they contend. only against that enlarged construction which would extend words beyond their natural and obvious import, we might question the application of the term but should not controvert the principle. If they contend for that narrow construction which, in support of some theory not to be found in the Constitution, would deny to the Government those powers which the words of the grant, as usually understood, import, and which are consistent with the general views and objects of the instrument; for the narrow construction which would cripple the Government, and render it unequal to the objects for which it is declared to be instituted, and to which the powers given, as fairly understood, render it competent; then we cannot perceive the propriety of this strict construction, nor adopt it as a rule by which the Constitution is to be expounded.
Powerful and ingenious minds, taking as postulates that the powers expressly granted to the Union are to be contracted by the construction into the narrowest possible compass, and that the original powers of the States are retained, if any possible construction will retain them, may, by a course of well digested but refined and metaphysical reasoning founded on these premises, explain away the Constitution of our country
and leave it a magnificent structure indeed to look at, but totally unfit for use. They may so entangle and perplex the understanding as to obscure principles which were before thought quite plain, and induce doubts where, if the mind were to pursue its own course, none would be perceived. In such a case it is peculiarly necessary to recur to safe and fundamental principles, to sustain those principles, and when sustained to make them the tests of the arguments to be examined.
THE APPRECIATION OF THE JUDICIARY
Extract from an Address before the Virginia Convention of 1829.
I AM not in the habit of bestowing extravagant eulogies upon my countrymen; I would rather hear them pronounced by others; but it is a truth that no State in the Union has hitherto enjoyed more complete internal quiet than Virginia. There is no part of America where less disquiet and less illfeeling between man and man is to be found than in this Commonwealth; and I believe most firmly that this state of things is mainly to be ascribed to the practical operation of our county courts. The magistrates who compose those courts consist in general of the best men in their respective counties. They act in the spirit of peacemakers, and allay rather than excite the small disputes and differences which will sometimes arise. among neighbors. It is certainly much owing to this that so much harmony prevails amongst us. These courts must be preserved; if we part with them, can we be sure that we shall retain among our justices of the peace the same respectability and weight of character as are now to be found? I think
I have grown old in the opinion that there is nothing more dear to Virginia or that ought to be dearer to her statesmen, and that the best interests of our country are secured by it. Advert, sir, to the duties of a judge. He has to pass between the government and the man whom that government is prosecuting; between the most powerful individual in the community and the poorest and most unpopular. It is of the last importance that, in the exercise of these duties, he should.
observe the utmost fairness. Need I press the necessity of this? Does not every man feel that his own personal security and the security of his property depend on that fairness? The judicial department comes home, in its effects, to every man's fireside; it passes on his property, his reputation, his life, his all. Is it not to the last degree important that he should be rendered perfectly and completely independent, with nothing to influence or control him but God and his conscience? . We have heard about sinecures and judicial pensioners. Sir, the weight of such terms is well known here. To avoid creating a sinecure you take away a man's duties when he wishes them to remain; you take away the duty of one man and give it to another; and this is a sinecure. What is this in substance but saying that there is and can be and ought to be no such thing as judicial independence. . . I have always thought, from my earliest youth until now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and sinning people was an ignorant, a corrupt, or a dependent judiciary. Our ancestors thought so; we thought so till very lately; and I trust the vote of this day will show that we think so still. Will you draw down this curse on Virginia?
THE EXACT COMPOUND
Extract from an Address in the Virginia Convention of 1829.
No person in the house can be more truly gratified than I am at seeing the spirit that has been manifested here to-day; and it is my earnest wish that this spirit of conciliation may be acted upon in a fair, equal, and honest manner, adapted to the situation of the different parts of the Commonwealth which are to be affected. As to the general propositions which have been offered, there is no essential difference between them. That the Federal numbers and the plan of the white basis shall be blended together so as to allow each an equal portion of power seems very generally agreed to. The difference is that one party applies these two principles separately, the one to the Senate, the other to the House of Delegates; while the other party proposes to unite the two principles, and to carry them in their blended form through the whole legislature.
One gentleman differs in the whole outline of this plan. He seems to imagine that we claim nothing of republican principles when we claim a representation for property. Permit me to set him right. I do not say that I hope to satisfy him, or others who say that republican government depends on adopting the naked principle of numbers, that we are right; but I think we can satisfy him that we do entertain a different opinion. I think the soundest principles of republicanism do sanction some relation between representation and taxation. Certainly no opinion has received the sanction of wiser statesmen and patriots. I think the two ought to be connected. I think this was the principle of the Revolution, the ground on which the colonies were torn from the mother country and made independent states.
I shall not however go into that discussion now. The House has already heard much said about it. I would observe that this basis of representation is a matter so important to Virginia that the subject was reviewed by every thinking individual before this convention assembled. Several different plans were contemplated. The basis of white population alone; the basis of free population alone; a basis compounded of taxation and white population (or, which is the same thing, a basis of Federal numbers); two other bases were also proposed, one referring to the total population of the State, the other to taxation alone. Now of these various propositions, the basis of white population and the basis of taxation alone are the two extremes. Between the free population and the white population there is almost no difference. Between the basis of total population and the basis of taxation there is but little difference. The people of the east thought that they offered a fair compromise, when they proposed the compound basis of population and taxation, or the basis of the Federal numbers. We thought that we had republican precedent for this-a precedent given us by the wisest and truest patriots that ever were assembled. But that is now past. We are now willing to meet on a new middle ground, beyond what we thought was a middle ground and the extreme on the other side. We considered the Federal numbers as middle ground, and we may, perhaps, now carry that proposition. The gentleman assumed too much when he said that question was decided.
It cannot be considered as decided until it has come before the House. The majority is too small to calculate upon it as certain in the final decision. We are all uncertain as to the issue. But all know this, that if either extreme is carried, it must leave a wound in the breast of the opposite party which will fester and rankle and produce I know not what mischief. The majority also are now content once more to divide the ground and to take a new middle ground. The only difficulty is whether the compromise shall be effected by applying one principle to the House of Delegates and the other to the Senate, or by mingling the two principles and applying them in the same form to both branches of the legislature. I incline to the latter opinion. I do not know and have not heard any sufficient reason assigned for adopting different principles; and there will be just the same divisions between the two, as appears in this convention. It can produce no good, and may, I fear, produce some mischief. It will be said that one branch is the representation of one division of the State, and the other branch of another division of it. Ought they not both to represent the whole? Yet I am ready to submit to such an arrangement, if it shall be the opinion of a majority of this House. If the convention shall think it best that the House of Delegates shall be organized in one way and the Senate in another, I shall not withhold my assent. Give me a constitution that shall be received by the people; a constitution in which I can consider their different interests to be duly represented, and I will take it, though it may not be that I most approve.
The principle, then, which I propose as a compromise is, that the apportionment of representation shall be made according to an exact compound of the two principles of the white basis and of the Federal numbers according to the census of 1820.