The spirit of the age. [volume] (Woodstock, Vt.) 1840-1844, 1841-01-08

! law would, and what would not, be properly up
plicabc TO the circumstances of The L. 5.
A discretion of this sort has always been lament,
ed as incOngruous aud dangerous, even in the Co
lonia and State courts; although somuch narrow
ed by positive provisions in The local codes on al
the principal subjects embraced by the common
law Under the t, s., where so few laws exist Oh
those subjects, and where so great lapse of tim,
must happen before the vast cllnsm could be sup
piled, it is manifest that the power Of the Judge,
over The law would, in fact, erect them into Lcgis-
lalors; and that for long time, it would be I'M
possible for the citizens to conjecture, either what
was, or would be law
In the last place, the consequence Of admitting
the common law lis The law of the L. States, on the
authority of the individual States is as obvious as
it would he fatal. As this law relates to every
subject of i.eglslalion and would be pnramom, 10
| the Constitutions and laws of the States; the adj
mission of il would overwhcm the rcSdnarv SOY
| Crcign,y of the States, and by one constructive
| operation, ncw-model the whole political fabric of
/ the country.
From the review thus taken of the situation of
The American colonies prior TO their Independence;
OF 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
Constitution from which the common law has been
dcduccd; of the difficulties and uncertainties Incl
dent 10 the doctrine and offs vast consequences in
extending the powers Of the Federal Governments
and in Supcrcedmg the authorities Of the State Gov
crnmcn,s; the committee feel the utmost confidence
in concluding, that the common law ucycr was, nor
by any lair construction, ever can be, drGmCa It
law for the American people rs one community:
and they indulge the strongest expectation that the
same conclusion will finally be drawn, by all can
al itl init, II
indeed, distressing TO reflect, that it ever should
have been made II question, whether the fonsiu-
ton, on the whole face of which is seen 50 much
labor TO cnumrratG aud define the several objects
of Federal power, could intend 10 introduce in the
lump, in an indirect manner and by forced con-
srucllon OF Il few phrases, the vast and nrulll;r-
Gus jurisdiction involved in the common law; a law
liIImg 50 many ample volumes; Il law ovcrsprcHd
Ing the entire field of Legislation; and Il law that
would sap the foundation Of the Constitution as u
system Of Iinilcd and specified powers, \ scvercr
rcproach could not in the opinion Of the committee
be thrown on the Constitutions on those who framed,
or on those who established it, than such .uppo-
>iIion would throw on them.
The argument, then, drawn from the common
law, on the ground Of it, hrng adopted or rcrog-
Med by the Constitution, being nappIcablc To the
Srdilon Act, the committee will proceed 10 exam
inc thu other arguments which have been founded
on The Constitution.
They will waste but little time on tho attempt 10
cover the act hy the preamble to the Constitution,
il being contrary To every acknowledged rule Of
construction, 10 set mp this par, of an instrument,
in opposition to the plain meaning, expressed in the
body of the instrument. preamble usually con-
iains the general motives or reasons. for the par
trulHT regulations or measures which follow it;
and is always understood To he explained and limi
ted by them. IN the present instance, n contrary
Interpretation would have the inndnssiblc effect.
of rendering nugltory or improper, every part Of
the Constitution which succeeds the preamble
The paragraph in Art. /, sec. s, which contains
the pow err 10 lay ard collect taxes, duties inlpo,ts,
aud excuses; 10 pay the debts, and provide for the
common defence and general welfare. having been
already examined, will also require no particular
attention in this place. It will have been seen that
in lis fair and consistent meaning, it cannot enlarge
the enumerated powers vested in Congress.
The par, Of the Constitution which seems most
to be rccurrcd 10, in defence of the cdiiion Act,
is the last clause Of the above sccion empowering
Congress ''o make all laws which shall be ncccs-
sary aud proper for carrying into execution the
foregoing powers, and all other powers vested by
this Constitution in the Government of the L. s.,
or in any department or officer thereof"
Tho plain import Of Ibis clause is, that Congress
shall have all HE incidental or instrumental powers
necessary and proper for carrying into execution
all the express power; whether they be vested in
the Government of the L. =, more collectively, or
in the several departments or officers thereof II
is not grant Of new powers to Congress but
merely n declaration, for the removal of all unccr
iainly, that the means Of carrying into execution,
those otherwise granted, included in the grant.
Whenever. therefore, question arises concern !
ing the constllulomliiy Of Il particular power, The
first question is, whether the power be expressed |
in ,hc Constitution. If il be- the question is dcc-
dcd II it be not expressed, the next enquiry mus,
be, whether II is properly an incident 10 an express
power, aud necessary 10 is execution. Fin be, ii
may be exercised by Congress. If it be moi, Con-
grc<s cannot exercise il.
Let the question be asked, then, whether the
power over the press exercised in the 'Scdilion
Act. be found among The powers expressly vested
in the Congress: This is not pretended.
Is there any express power, for executing which,
it is a necessary and proper power:
The powerwhrh has been selected as least re-
mote ia answer To This question, is that Of g sup
pressing nsurrcclion.;' which is said 10 imply
power 10 prcrcoi instructions, by furnishing what
ever may icm OF tent 10 them. But. it surely
cannot, with the least plau>iby, be said. that II
equation of the press. and punishment Of lihels,
,rc exercises of power 10 suppress Instructions.
The most tia, could be said, would be, that The
punishment of Iihcls, il had the tendency as'rhcd
10 it. might prevent The occasion Of passing or cy-
'ruliug law. necessary and proper for the suppress
son # insurcciiors.
Has the Federal Government no power. then, 10
prevent rs well 10 punish resistance 10 the laws?
They nave the power, which the Constitution
lccmed most proper. in THEN hands for the pu pose.
The Congress, has power, before il happens 10 pass
avs for furnishing it; aud the Executive and Jn-
Iiciry have power 10 enforce those laws when II
locs happen.
II must be rccollccied by many. and could be
hown 10 the satisfaction of all, that the colstruc-
ION here put Oh the terms necessary and proper,
: precisely the construction which prevailed during
he discussions and Publications of the Constitution
i may be added, and cannot too often be repeated,
hat it is n construction absolutely necessary 10
nanan their consistency with the peculiar cl1rac-
or Of the government, as possessed Of particular
md defined powers only: not Of the general and
Indefinite powers vested in ordinary governments
'or. il the power to suppress iHsurreciioHs, in
ludes a power to puHid Hjcls; or if the power
o pyaisi includes n power 10 Prcrrm, by al!
he means tina, NAV have that ieRdcGry, such is the
IL,