The Arkansas banner., 1845-12-03


 Congress would, therefore be no longer un- der the limitations marked out in the Con- stitution. They would be authorized to le- glslate in all cases whatsoever. -.-.
 In the next place, as the President posses ses the executive powers Of the Constitution, and is to see that the laws be faithfully exc cuted, his authority would also be co-exten- sive with every branch of the common law The additions which this would make to lis power, though nor readily 10 be estimated, claim the most serious attention.
 This is not all; it will merit the most pro- found consideration, how far an indefinite ad- mission of the common law, with a latitude in consHuing 1t, equal to the construction by which 1t $ deduced from the Constitutions might draw after it the various prerogatives, making part of the unwriuen law of England, The English Constitution itself is nothing more thaE composition o unwritten laws and maXias
 In the third place, whether the common law be admitted as of legal or of constitutions al obligation, 1t would confer on the judicial department discretion little short of egisla- tive power.
 On the supposition of its having a consti- tutlonal obligation, this power ia the judges would be permanent and irremediable by the Legislature. On the other supposition, the power would not expire until the Legislature should have introduced full system of stat utory provisions Let it be observed, too. that besides all the uncertainties above emu meraied, and which present an immense field for judicial discretion, it would remain with the same department to decide what part oi the common law would, and what wouldno be properly applicable the circumstances oi the United Slates
 \ discretion of ths sort has always been lamented as inconeruous and dangerous, even in the colonial and State Courts; although so much narrowed by positive provisions in tie local codes on all the principal subjects om- hraced by the common law. Under the Uni ted States, where so few laws exist on those subjects and where so great lapse of time must happen before the vast chasm could be supplied, it is manifest that the power of the judges over the law would, in fact, erect them into legislators, and tGat, for a long time, it would be impossible for the citizens to conjecture either what was, or would be law.
 From the review thus taken fthe situation of the American colonies, prior to their inde- pendence. of the effect of this event oil theil situation; ef the nature and import of the ar ticles of confederation; of inc true meaning of the passage in the existing Constitution from which the common law has been de- duced; of the difficulties and uncertainties in- tl T quences in extending the powers of the Fed efal Government, and n'superceding the au- thorties of the State Governments; the com m,tee feel the utmost confidence in conelu- ding, that the common law never was, nol 1 by any fair construction, ever can be deemed a law for the American people as one com. munity; and they indulge the strongest ex- pectation that the same conclusion will bt finally drawn by all candid and acurate in- quiries into the subject. Il is, indeed, dis. tressing to reflect, that it ever should have been made a question, whether the Constitu- tion, on the whole face ol which Is seen SC much labor to enumerae and define the sev- efal objects O Federal power, could intend to introduce in the lump, in an indirect maa- ner, and by forced construction of T few phrases. the vast and mulliarlous iuristlic- tlon involved in tha common law; a law fill ing so many ample volumes a law overspfead- ing the entire field of egislaton; and law that would sap the foundation of the coasti- tutlon as a system of limited and specified powers. A seyerer reproach could not, in inc opinion of the committee, be thrown on the Constitution, on those who framed, ol on those who established il, than such sup. position would throw oil thems
 The argument then, drawn from the com. mon law, on the ground of lis being adopted or recognized by the constitution, being in applicable to the Sedition act, the committed will proceed to examine the other argument, which have been founded on the Coastitu ton.
 They will waste but lttle time on the at tempt to cover the acl by the preamble to tht constitution, it being contrary to evey ac knowledged rule of construction, to set uI this part of an instrument in opposition tc the plain meaning, expressed ill the body O the instrument. A preamble usnally contain! the general motives or reason Tor the parlc uar regulations or measures which iollev 1t; and is always understood to be explained by them. h the present instance, contra ay interpretation would have the inalmssibl effect, of rendering nugatory orimProPer, ev cry part of the constitution which succeed the preamble.
 Tie paragraph in Ali 1, Sec. 3, whicl contains the power to lay and collect taxe duties, imposts, and excises; to pay the debt and provide for the common defence an general welfare having been already exam ined, will also require no particular attention in this place. IL will have been seen that i its fair and consistent meaning, t came enlarge the enumerated powers vested i Congress.
 The part of the constitution which seem most to be recurfea to, in defence of the Se diton act, is the last clause of the above sec ton, empowering Congress to make all law which shall be necessary and proper for car rying into execution the foregoing power: and all other powers vested by this constitu ton in the Government of the United State: or in any department or officer thereof.
 The plain import of this clause is tha Congress shall have all the incidental or ir strumentl powern, necessary and proper lo carrying into execution all the express pow CTS; whether they be vested in the Cover ment of the United Saee, more collectvel