State journal. [volume] (Montpelier, Vt.) 1831-1836, 1836-04-26
MONTPELIER, (vT.> APRHL %, 1870.

NulCH even COkC or u llaTSlbN6 Inl1nl Wcll
D shrink, in some degree of despair. Surely,
= whoever, under the barbarous code of our
= Saxon ancestors, had sought the judgment Of
: God in his favor, by walking blindfolded and
, barefooted amid burning poughshares, would
be called upon to encounter no less danger.
, Gus ordeal, in treadng the legal labyrinths
formed by the provisions of this statute.
But, without dwelling longer on the practi-
cal operation OF q statute founded on the prin-
2 cpes Of the report of the Postmaster Genera,
, the minorinty will proceed to inquire whether
} Congress, by making State legislation the ba-
= sis of its own, would draiU to itself any con-
stitutional power TO restrain the mail crcua-
} ton of incendiary publications" Such con-
, stitutional power is not supposed, by the argu-
ment Of the Postmaster General as the mi
: nority understand ii, TO be general power in
; Congress over the mail circulation of such
! publications, but TO be limited power, de-
pending on, and flowing from, the circum-
stance that the publications. in the opinion Of
the States, tend TO excite instruction. And
the precise question now TO be considered is,
whether, supposIng Congress to possess no
general power TO restrain the mail circulation
Of these publications. the power can be deriO-
ed from The fact Of their being offensive to the
States. 1t is not denied by the majority that
measures of the States for preventing insur-
Government with respect, and that this Gov
ernmcnt, so far as lis delegated po,cers lcW adj
NIT, should cooperate with the States in the
execution Of all their proper and necessary
laws Cor that purpose. But the argument of
the Postmaster General Is in favor of derir-
dttae power and supposes new substantive
authority in Congress to aiise from all alleged
obligation TO cooperate with the States in car
rying their laws into effect 1t supposcs the
existence Of some power in the Constitution,
which has been hitherto dormant, and which,
if walked into activity, and written out at length
among its articles, would read something after
this manner: "Whereas it ia intended by this
Constitution TO bind Congress to cooperate
with the States in the measures they may a.
dopt for preventing resistance TO State author
ity; and whereas it may sometimes happen
that Congress cannot render such legislative
cooperation, by reason that no delegated pow
er is found in this instrument enabling Con-
gress to do SO, or by reason that the legisla-
ton required by the States is Of a character ex-
pressly forbidden by some of the prohbtorv
clauses Of this Constitution Now therefore,
it is hereby ordained and declared, that all
State laws intended to prevent resistance to
State authority shall be taken and deemed as
comforting the aforesaid necessary power on
Congress; and the said State laws shall also
IuNc eHSCt W lOpiOul1 pfO t"ftoj "Ii VIC plo-
hibitory clauses OF the Constitution which
might seem to stand in the way of the aiore-
said congressional legislation"
1t must be apparent that nothing short OF
the power here stated would be ehectuul
to confer the required authority on Con-
gress. No argument in favor OF this power
can be drawn from any supposed principles
Of international law. For although the
General Government, in respect to foreign
nations, is necessarily subject to the general
rules which the moral sense Of mankind
may have in some measure prescribed TO
regulate the intercourse between indepen-
dent Powers. yet, in regard TO the relations
between the Genei al Government and those
of the States, the uncertain rules OF the ma
tional code are abrogated and superseded
by all instrument of Government in which
those relations are expressly pointed out
and defined. Whether such derivative
power exists or not, can only be determined
by that instrument. The power can come
from no other source than the Constitution;
its existence can be tried by no other evi-
dence. The minority have 10 hesitation in
saying that, in their opinion, no such power
is delegated by that instrument; and they
have as little in declaring tl.at no such
power ought to be delegated. The proh-
btion of offensive publications. is but one
among the many means which State may
use to prevent instruction. What dangers
would arise from the exercise of power of
cooperation, riding above the prohibitory
clauses Of the Constitution in other cases
than those of the circulation Of offensive
; publications, il is not now necessary TO in
quire though those OF an alarming char
= actcr might readily be stated. Even under
r this branch of the power, the derivtlve au.
l thority supposed would enable IL State com
: bined with Congress TO subvert some Of the
= most valued provisions of the Constitution
= and coupled with the obligation under
, which it is alleged to arise, by placing Con-
gress and the whole People of the Union at
the mercy of the State alone, would render
the Constitution of little value. OF the
dangerous nature Of this triumphant power
, in State laws, something may he seen by
recurring 10 what has already been said OF
r the extent Of the supposed obligation, from
which the power Of Congress is sought TO
be deduced-.-an obligation which might
compel Congress to prohibit the mail circu-
lation of all publications on any subject,
I whether moral, physical, religious, or poIit-
= zeal and which, at the option Of a single
I State, would impose OH Congress the hui
= initiating and suicidal net Of aiding by its
Legislation in bandaging the eyes OF every
freeman in such State against the light of
any argument it might desire TO address
= them in favor of its own just powers OF
, government, or against any unlawful as
, sumption of power by such State. Had the
/, project Of the statute now under considera-
, ton been the law of the land in 1892, il
r would have been entirely in the power OF
the Legislature of South Carolina, by pro-
Iibiling the circulation Of the Presidents
4 Proclamation, to have made the President
t himself and every individual in the nation
e liable to punishment tefore the courts OF