SECTION 8.

THE BANK DECISION.-SOVEREIGNTY OF SPHERES.

"If any one proposition could command the universal assent of "mankind, we might expect it would be this; that the govern"ment of the union, though limited in its powers, is supreme "in its sphere of action. This would seem necessarily to result "from its sphere of action. It is the government of all; its "powers are delegated by all, it represents all, and it acts for " all." "The powers of sovereignty are divided between the government of the union and those of the states. They are " each sovereign with respect to the objects committed to it, and "neither sovereign, with respect to the objects committed to the "other."

The word "sphere" conveys an idea of something limited, in which sense it is correctly applied to our governments by the Federalist, and may be easily undersood; but I confess myself extremely puzzled to discern, how this word, being a substantive circumscribed, can be converted into a substantive uncircumscribed, by the help of the adjective" sovereign." And I think it almost as difficult to see what is meant by the sovereignty of the spheres, as it is to hear the musick of the spheres. But, as some change of the nature of a sphere must be effected by an incongruous epithet, to sustain the opinion of the court, the experiment deserves a very serious and respectful consideration.

The word "sphere" was very happily used in the Federalist, and conveyed an idea of our system of government, both just and beautiful. It refers to the structure of the universe, as the model of our political system; and in the allusion, tacitly suggests, and forcibly illustrates the sovereignty of the people over the spheres they have created. The beauty of the similitude consists in the regularity produced by a strict confinement of these spheres within their respective orbits; and it contains a fine admonition, in extending our ideas to the consequences

which would ensue to the universe, should one of its spheres leave its own and travel into other orbits; to forewarn us of the consequences which would ensue to our political system from a similar aberration. But the similitude is utterly spoilt, by the idea that one of our spheres may annex to itself a long tail of means, reaching into the orbits of other spheres, so as to defeat the sublime allusion, and leave us only a regret for having neglected its admonition.

If the sovereignty of the spheres means any sovereignty at all, it supersedes the sovereignty of the people, since they can no longer possess that, which they have divided among spheres. But, if these spherical sovereignties are restrained by their orbits, called " spheres of action," then this new phrase means nothing at all, because a change in the description, does not alter the nature of the thing described; and if our divisions of power will still remain the same, whether they are called spherical sovereignties, spheres of action, limited powers, balances, checks or trusts (as the moon did under the several names of Phoebe, Cynthia, Diana, Dictynna, Hecate and Luna,) no sound argument can be deduced from using one appellation in preference to another. "The limited monarchy of spheres" would have been more appropriate to the apparent meaning of the court in this extract, as clearly conveying the idea of spherical limitation, and clearly excluding that of a spherical extension of power lurking in the word sovereignty. We see a sovereignty of spheres in England, to justify the language adopted by the court, and we know that the sphere of action of each is limited and restrained by the spheres of action of the other two. By calling each "sovereign with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other," I cannot see that the powers of the king, of the lords, or of the commons, would be enlarged in the least degree; or that a choice of means would be bestowed upon either, by which it could encroach upon the others. To our imitation of this model in the arrangement of legislative and executive power, we have, besides others, subjoined two improvements, by a judicial sphere possessing a great political power; and by the important spheres called state and federal governments. Now, if a spherical sovereignty exists here as it does in England, it would be as certainly destroyed,

as it has often been there, if either sphere possessed an exclusive or an uncontrouled choice of means, in the exercise of a species of sovereignty separately from the rest. Encroachments of sphere upon sphere can only be made by means; and it is yielding nothing to admit that the spheres are circumscribed, but to insist, that their choice of means, by which encroachments are made, is unlimited; because a political sphere of action, cannot possibly be created in any other way, than that of withholding from it many means for effecting the ends, even the legitimate ends it may have in view. Even in bringing a murderer to justice, the means, as well as the sphere of action in the court, are all limited. If it was otherwise, confusions, usurpations, and oppressions would ensue on all sides; because power never finds any difficulty in choosing means calculated for its own enlargement. In fact, we know that the English political history is only a compilation of insidious and specious means, occasionally resorted to by each of the spheres, for the purposes of deluding the people, and encroaching upon the others. At length these spheres having harrassed each other for many centuries, by each having chosen means for encroaching on the others, came to a compromise; and compounded among themselves a sovereignty of spheres; and this precedent justifies the court, however puzzled I may be to understand it upon American ground, in using that phrase. But in quoting it, especially if I do not dispute its authority, I hope I may be allowed to contend, that it cannot prove the same thing to be wrong in England and right here. It proves that political spheres, by uniting, may acquire, not an indivi-› dual but a collective sovereignty. It thence follows, if the sovereignty has passed in the United States from the people to political spheres, either by delegation, or by the usurpation of those spheres, that it can only be executed legitimately by the collective or united consent of all these spheres; unless it can be shewn, that a sort of interregnum or suspension of this spherical sovereignty, like those which often happened in England, has already happened here. The same precedent proves, that neither sphere ought to have any choice of means in the exercise of its own spherical powers, by which it may encroach upon its collateral spheres; for, though they were not co-ordinate, nor circumscribed to preserve the liberty

of the people, yet they became balanced by mutual fear for mutual safety; and accordingly each sphere has been obliged, as the only chance for self-preservation, to be excessively jealous of the means resorted to by each to increase its own power. Now what does this English precedent teach us? That a spherical sovereignty can only be exercised by the mutual consent of the spheres: That one sphere can only be prevented by the watchfulness and resistance of the others, from using means to make itself the master of these others. That its success has always been considered as a usurpation, and has always introduced a tyranny: And that it was necessary to preserve the independence of the spheres of each other, to maintain even the semblance of a free government.

If then we are to adopt the English spherical sovereignty, we ought not to make it worse than it is, by subjoining to it vices, which it rejects, as utterly inconsistent with the spherical system, and certainly destructive of all the good it can produce. In that country, each sphere is a judge, independently of the others, of its own sphere of action, and of its own means; but both this sphere of action, and these means, are checked and restrained by the sphere of action and the choice of means, possessed by the other spheres. The same equivalency is necessary here to preserve a sovereignty of spheres, and prevent one from becoming the master of the others. The English system has made no specified provision to settle the collisions which will naturally arise, and have arisen in England from this equivalency of powers, "because power controuled or "abridged is almost always the rival and enemy of that power "by which it is controuled or abridged," as Mr. Hamilton justly observes in the Federalist, page 81; and this important office is loosely left to publick opinion, without establishing an orderly mode in which it might be expressed. Our system, foreseeing the probability of such collisions, both from the temper of human nature, and also from the occurrences in England, has provided a constitutional and orderly mode, by which publick opinion may exercise this supervising office. It would be a radical violation of the English policy of checks and balances, considered in that country, as the only safeguard of liberty, even without a specifick provision for reconciling collisions, were we to surrender the same safeguard, with specifick pro