Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1866-05-14
0Qlo tSstatesnrarr,
RESTORATION AND THE RIGHTS OF THE
FEDERAL AND STATE GOVERNMENTS.
SIP Il ECEI
OF
HON. VIM. {. FINCK,
OF OHIO, "
IN tho House of Representatives,
April 2S, 1866.

The House, as in committee of the Whole
on the state of the Union, having under
consideration the Presidents annual mes
sage, . .....
Mr.. FINCK said:
Mr.. SPEAKER: Had debate been allowed
on the Civil Rghtsbil after it was returned
by the Senate to this House with the OBJ
jeCtiOns of the President, would not have
troubled the House with any remarks on
this occasion; but the principles involved
in that bill and of other kindred measures
which have been introduced into the pres
ent Congress, are Of such an extraordinary
character as may well challenge the pro-
found attention and close examination of
Congress and of the country. Their con-
sideratiOn demands an inquiry into the
nature and powers of the Federal Govern
'ment, and propose very briefly to exam
inc some of the questions which seem to me
appropriate TO this discussion.
Our system of government, Federal and
State, is a complex one, and the boundaries
which separate and fix the powers OF each,
engaged the most anxious and thoughtful
consideration of the great men who framed
the Constitution of the United States. No
question was presented aud discussed in
the Convention of so much interest and
importance as this. 1t was upon this great
question that the Convention was princi-
pally divided; and if any one thing was
settled in that Convention, and by the Con-
ventiOns of the several States, which after
wards ratified the Constitution, it was, that
the Federal Government was to be one of
limited and delegated powers, which were
clearly defined in the instrument, and that
il could exercise no powers not thus eX-
pressly granted, except such as were nee
tn DT1ntg.
The powers conferred upon Congress,
high aud important as they are, are compar-
atively few in number, and are defined in
section eight, article one of the Constitution.
know that some gentlemen claim that a
great deal may be done under the last clause
of the section to which | have referred,
which provides that Congress shall have
power
"To make all laws which shall be necessary and
proper for carrying INTO execution the foregoing
powers, and all other pIwers vested by this COnstl-
tuition in the Government of the United states, or
in any department or ohicer thereof"
But, sir, this clause cOnfers no new or
additional power upon Congress. 1t simp-
ly authorizes Congress to make all laws
which shall be necessary and proper for
carrying into execution" the powers grant
ed in the Constitution.
Mr.. Madison in the Virginia Convention,
speaking of this clause, said:
with respect to the supposed operation of what
is der minated the sweeping clause, the gentleman
mistaken; for 1t only cNtenued to all enumcTat-
ed powers. Should Congress attempt to extend 1t 10
any power not enumerated it would not be warranted
by the clause.
Justice Story, in his Commentaries,
speaking on the same subject, says:
"The plain import of this clause is that Congress
shall have all incidental and instrumental powers
and tO into execution n eN-
press powers. 1t neither eRLLr0eS aOy power spect
cally grated, nor is IL grant Of dny ne'0 Po'oer
TO Congress-" 3D..
In the case of McCulloch us. The State of
Mary land, Chief Justice Marshall, deliver
ing the opinion OF the Court, announces the
same doctrine. He says:
"This Government is acknowledged by all to be
one OF enumerated powers. The principle that it
can eXer ise only tn powers granted to 1t, would
seem too apparent to have required to he enforced by
all those arguments which its enlightened friends,
while it was depending before the people, found 1t
necessary TO urge"
The Constitution was formed by peO-
pie who had been in the possession and en-
joyment OF State governments of long
standing. These States had entered into a
Government under Articles Of Confedera-
Uion, which, after the pressure of the war OF
independence had been removed, proved
inadequate for the purposes of General
GOvernment; and the States, sovereign and
independent as they were, having all the
machinery and attributes of governments
in themselves, SO far as the same had not
by the Articles of Confederation been "eX-
pressly delegated to the United States"
undertook to form more perfect Union /;
and to that end sent delegates to ConVen-
tion; and the result of their labOrs, the
Constitution which they Trained, was sub
% 70 la nj InifnH
States, for ratification, but was submitted
to the several States, to be ratified by the
people of each State acting through their
own Conventions, and was to be binding
only on such of the States as should thus
ratity, thus making it Federal Govern
ment. The extent and character OF the
powers conferred upon the Government
thus formed, were delegated powers, de-
fined and limited, and all power not grant
ed was from the very nature OF the grant
reserved to the granting power, namely, to
the States and the people.
Now, was any power delegated by this
Constitut on to Congress to regulte the in
ternal affairs of the States, or control con-
tracts, prescribe who should be witnesses
or parties in suits, who should inherit, pur-
chase, lease, sell. hold, and convey real and
personal property in the several States? !?
None whatever, except that it is prohibited
to the States to pass laws impairing the OBJ
legation of contracts. Justice Story, speak
ing of this Government, says:
"They have made il limited Government. They
have dsned Us duthOTity They have restrain d it
to the exc se of cettdin powe =, aud reSerUed all
others to the states or to the people"
MIR. Madison, in the FederaIjSt, says:
THE powers delegated by the proposed Constitu-
ton to the Federal Cove nmen are lev and Gepned.
Those which are o remain with the State Govern.
ments are numerous and Indefinite. The rmer Will
be exerc sed principally external Objects rs war,
peace, negotiation, and foreign commerce, CON WIN
~h ch last the power OF taxation Will lot Iue most
part be connected .u
:" The powers reserved to the several States will
eStend TO All the objects which in the ordinary course
of affairs cjnoera the RUes liberties, and properties
of the peOp e, and the intern order, Improvement,
and prosperity of the State"
1 II must be evident from this that Mr..
Madison, who is justly regarded as the
father of the Constitution, never dreamed
that such power as is assumed In the Civil
Riohts act, would ever be claimed or eXer-
cised by Congress.
But again, Mr.. Marshall, afterward Chief
Justice, speaking of the Constitution, q
Elliot's Debates, 503,) asks:
"Hss the Government of the United States power
to mako laws on every subjectP Does he understand
II so? Can thew make laws concerning the mode Of
trans in0 property, or contracts or claims BE-
tsooea citisss Of The same StGtef Can they go be-
vond the delegated pOwors2 If they were to make
law not warranted by any of the powers enumerated,
it would be considered by the judges as an infringe
ment of the Constitution which tuey are to guard
But this House, by a majority of more