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better known when the critical emergency for so grievous a trial shall occur.

Our farmers and mechanics are wise men : and “a word to the wise” is “as a nail in a sure place.” (Isa. xxii. 23.)

In the mean time, that is, while the farmers and mechanics are deliberating; I proceed, as heretofore, to speak plainly of men and measures.



THE FEDERAL CONSTITUTION. How to be interpreted. The meaning of the constitution is to be ascertained: 1. From the letter of the text and context. 2. From the animus imponentis, from the mind of the sages who framed the instrument; and from contemporaneous expositions. 3. From the acts of Congress, which have been acquiesced in by the people without question or objection-i.e. long usage unopposed and undisputed. 4. From decisions of the Supreme Court of the United States in doubtful and litigated cases. In these several ways we arrive at the gradual development and certain interpretation of this grand national charter of delegated and therefore limited powers. I

may here add, that quite recently-within a few years past—means have been furnished whereby we may learn the intention of the original authors of the constitution, to a much greater extent than formerly. Since the publication of numerous recorded documents by order of Congress—especially the Secret Journals or Minutes of the Convention itself, and the Madisonian Papers--together with the “Secret Proceedings and Debates of the Convention," from notes taken by the late Robert Yates of New York, who was a member of the Convention- we are enabled to enter pretty fully into the entire train of thought and reasoning which led to the final adoption of almost every article, section and clause of the constitution. These, in connexion with the elaborate essays of Hamilton, Jay and Madison in the "Federalist,” afford a very lucid commentary, or useful guide to the impartial student of constitutional law: and he will seldom be left in the dark upon any title or subject. Such an instrument cannot be construed without aids of this description. We must be acquainted with our previous history-with the old confederationwith the precise difficulties which led to the Convention of 1787—with the various complex and conflicting interests to be therein adjusted-with the spirit of compromise and conciliation which was brought to bear upon the work—with the diverse plans submitted by eminent individuals with the arguments urged pro and conand lastly, with the motives and considerations which ultimately prevailed in each particular case.

Whether our distinguished jurists and learned expositors of the constitution would have decided or written otherwise than they have done, had the above-mentioned documents been published a half century earlier—is not a question for me to answer. Possibly, a different opinion, in a few instances, would have been expressed. Thus, Chancellor Kent might have varied his phraseology concerning the mode by which the constitution intended that United States senators should be chosen by the State legislatures, had he read the debates upon the subject as reported by Mr. Madison. From him it clearly

appears that the Convention had in mind nothing more than to provide or agree upon a competent body or college of electors for this single purpose—namely, of choosing senators. And that, of course, the members were to vote as individuals or per capita; and not that the election was to be a formal act of legislation in the technical sense, like the passage of a law. As in the latter case, one House would have a negative upon the other: and the governor, in some States, might veto the act of both. In either dilemma, it would be impossible to elect at all.

The Supreme Court of the Union, I have said, is the only tribunal to decide finally and in the last resort, all controversies arising under the constitution or about the constitutionality of any law of Congress. I do not mean however to intimate that every such decision must of necessity be righteous, or the best possible. It is, nevertheless, law for the time being, and must be obeyed. If we do not like it, we must so amend the constitution as to prevent a recurrence of the evil in future. This is a remedy or preventive always at the command of the sovereign people. And they should never permit real grievances to remain long unredressed.

The New Englanders did not approve the indefinite or perpetual embargo act of Congress under Mr. Jefferson. They pronounced the law unconstitutional.-Appealed to the courts — lost their cause ----and submitted with what grace they might. Here the matter ended. Had they proceeded further, their next legal step would have been, to procure such an amendment of the constitution as should restrain Congress from laying embargoes for more than thirty or sixty days at a time-or for some other short definite period.

I proceed to specify a case or two wherein the actual construction of the constitution has proved inequitable or injurious, with a view to illustrate the kind of ameliorating process which must be resorted to in order to avoid similar evils in future.

CASE 1st. Preference of the United States over other creditors. “Congress have declared by law, that the United States were entitled to priority of payment over private creditors, in cases of insolvency, and in the distribution of the estates of deceased debtors.” (Kent.) And the courts have decreed accordingly. The same preference is claimed under the present Bankrupt Act;* and, no doubt, the courts will sustain the law. Here, I think, both the law and the judicial decisions are unjustthough not expressly prohibited by the constitution. In this instance, as in some others, we have followed a bad precedent—as the modern feudal sovereigns of Europe probably followed the usage of ancient Rome. In England, as on the continent, the king is or was the sole fountain of law, honour, title and privilege. Debts to the government were debts to the king-were sued


* Passed in August, 1941; took effect February 2, 1842. repealed during the session of Congress of 1842–3.

† "The government was a privileged creditor under the Roman law, and entitled to priority in the payment of debts. The cessio bonorum was made subject to this priority. This is generally the case, in all modern bankrupt and insolvent laws. In England, the king's claim is preferred to that of a subject, provided the king's process was commenced before the subject had obtained judgment." ( Kent, vol. i. p. 247.)

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