Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1840-11-27
particular State, 10 be applied to all

Particular otdlc, IL ue dpP1icu ~ go
And the latter supposi,ion which among the STATE
codes would form the standard:
Questions of this sort might be multiplied with
much ease as there would be difficulty in answering
them.
The consequences flowing from the proposed
sruc;on furnish other objections equally conclusive:
unless the text peremptory in It's meaning, and
consistent with other parts OF the instrument
These consequences may b. in relation 10 the le-
gislatiye authority Of the L. s. to the Executive au-
thority to the Judicial authority and to the Govern
tacnts of the several States.
If it be understood, that tie common Law IS csta-
blsled by the Constitution, it follows that part OF
the law be altered By the Legislature; such Of the
statutes, already passed. may be epusnant thereto,
would be nullied particularly the ''Sedton Act
ITSELF which boasts Of being moderation Of the COM
mon law; and the whole code, with all its incongTui
ties, barbaFisms, and bloody maxns, would be iny'o-
lably saddlcd on the good people OF the u s.
Should this consequence lie rejected, and the conf
mon law be held like other laws liable TO revision and
alteration by the authority fCong7css, it then follows,
that the auth rty of Congress coeXtensivc with tile
objects of common law that to say, with every object
Of Legisatlon For, 10 every such object does somr
branch other of The common law extend The au-
thority Of Congress would, therefore, be longer
der the limitations, marked out i'll the Constitution.
They would be authorised to leglsatc in all cases what
soevcr.
In the next place, the President possesses the ex
ccutivc powers of the CONSTITUTIONS and is 10 that
The laws be faithfully executed his authority also must
he co.cxcnsvc with every branch oithe common law.
The additions which this would make 10 his power,
though readily TO be estimated claim the most scrl-
Gus attention.
This is not all it will merit the most profound con-
sideration how far an indefinite admission OF the COM
mon a: with latitude III construg II, equal 10 The
construction by which it IS deduced from the Constitu-
ton might draw after the prerogatires max
ins part OF the unwrtten law Of England The In
gsl Constitution itself is nothing more than conpo-
sition of unwrtcn laws and maXlnls.
In the third place, whether the common law be ad-
united Of legal or Of constitutional obligation, IT
would confer the Judicial department n discretion
LITTLE short OF Legislative power.
On the supposition of It's having constitutional OBJ
lira.on this power in the Judges would be permanent
and lrTcmediab!e b. the Legislature On The other
supposton the power would not expire, until the lie
rslutGrc should have introduced full system OF stau
tory provisions Let be observed, too, that besides
al the uncertainties above enumerated and which pre-
sent an immense field for judicial discretion, II would
remain will! the department TO decide what parts
Of the common law would, and what would not, DC
properly applicable 10 the circumstances "i ihe oh'cu
States.
4 discretion of this sort has always been lamcnted rs
nconrruous and dangerous, in The Colonial aud
State courts; although much narrowed NY POSITIVE
provisions in TIE local codes all the principal SUI
ec.s embraced by the common law. Under the y. D,
where so few laws exist those subjects ana where so
great lapse Of time must happen before the vast chasm
could be supplied, it manifest that the power 81 Tie
Judpcs over the law would fact erect them into Lee
gisa,ors and that Tor long time, II would be 'mPossi
BE Tor the citizens TO conjecture eher what was, OF
would be- law.
In the last place. the consequence Of admitting the
common law as the law Of the L. States, on the au-
o..ty Of the individual States, Is Is obvious as "
would be fatal As s law relates 10 every SUBJECT OF
I.cglala,;on and would be paramount TO the Consuti.
tons and laws Of the States; the admission Of would
oycrwhcm the rcduary sovereignty OF line Siatcs ana
by one constructive operation, newmodei the Whole
political fabric Of the country.
From tie review thus taken Of the situation oil the
American colonies prior to their Independence oil the
effect Of this event on their situation OF the nature
and import Of the articles OF confederation; Of the
true meaning of the passage in the existing Con-
st:tuiion from which the common law has been Geduced
Of the difficulties and uncertainties inciaent 10 The
doctrine and Of its consequences IN extending the
powers Of The Federal Government and superceding
the authorities Of the State Governments the commit
tee feel the utmost confidence III concluding, mat the
colinon law was nor by any TAR construction,
ever can be- deemed law for the American people as
one community and they indulge the strongest eXpec
tat.on that the same conclusion Will finally be drawn,
by all candid and accurate enquirers INTO the SUB
rect Il is indeed, distressing 10 reflect that u ever
should have been made question, whether The Con-
stitution, on the whole face OF which is seen SO
much labor to cnumcrate and define the several OBJ
ccts OF Federal power, could intend 10 introduce
IN the lump, in IN indirect MANNER and by forced
construction of a few phrases, the vast and null
hilarious Jurisdiction involved III the common law; law
filing SO many ample volumes; law overspreading
the entire field Of Legisatlon and law tiat woula
sap the foundation OF the Constitution rs system OF
limited and specified powers. severer fep!oach
could not in the opinion OF the committee be thrown OH
the Constitution, those who framed, or on inose VINO
established it, than such supposltion would throw OH
them.
The argument, then, drawn from the common law, on
HE GROUND Of lis being adopted recognized BY the
Constitution being inapplicabc to the aed.iion Act,
the committee VIII proceed TO eXanne Tue oler ars"
prnis which have been founded on tile Ionslitilioh
They will waste but little time on the attempt 10
covcr The act Ly the preamble to the Constitution, It
being contrary to every acknowledged rule OF con-
slruciion 10 set up this part OF an instrument III OPP
position to tie PLAIN meaning, expressed IN The BODY
Of the instrument \ preamble usually contains TIE
general motives or reasons for the particular reguia-
lions or measures which follow III and is always UNDER
stood to be explained and limited by them In The pre-
sent instance contrary Interpretation would Fave TIE
inalmissble effect, OF rendering nugatoy or improper
every part of the Constitution which succeeds tile pre-
amblc.
The paragraph in Art !, sec :, which contains the
newer 10 lay and collect taxes duties, mposts and ex-
cscs to pay the debts and provide Tor Tie common de-
fence and general welfare, having been already ex-
ahmed will also require no particular attention ~ lh's
place It will have been seen that IN IT'S lar ana con,
ssteut meaning, 1t cannot enlarge tic ehuie'a'eo
powers vested in Congress.
The part of the Constitution which seems most to nc
rccnrred to- in defence Of the "Sedtion Act is The
last clause Of the above section, empowering congress
o make al! laws which shall be necessary ana proper
for CARRYING into execution the foregoing powers, and
all other powers vested by this Constitution IN the Co
vernmcnt of the u. States, in any department or
officer thereof. ,
The plain import of this clause Is, that Congress shall
have all the incidental instrumental powers necessary
and proper for carrying into execution all the express
powers whether they be vested III the Government OF
the t. s., more collectively, or in the seveso! depart
mens, or officers thereof II is not grant Of new
powers to Congress, but merely declaration, ior .he
removal of all uncertainty, that the means OF carrying
into execution, those otherwise granted, are included
in the grant.
Whenever, therefore, question arises concerning
the constitutionali,y Of particular power te h,st
question is, whether the power be expressed IN the
Constitution. If it be, the question IS decided =, il
il be not expressed, the next enquiry aus be- whether
it is properly an incident TO an express power and
necessary to its execution. If it be- it may be e<e'
cised by Congress. If it be not, Congress cannot
| exercise it.
bo ,cLed then whether the mower