ral rule, to be construed according to the intention of the par ties, to be collected from the whole instrument; and each particular provision is to be construed so as to effectuate the purpose which they had in view. If this principle of construction be too constrained and technical for gentlemen, look at the origin of the instrument, and the pre-existent state of things which led to its adoption. We had articles of confederationa rope of sand---a federal head without any power of coercion --a government carried on by the courtesy of the several states merely--an unshaped vessel, which nothing could have held together, during the war, but the common danger which pressed around us, equally, on all sides. On the return of peace and the establishment of our independence as a nation, those patriots who had had an opportunity of knowing at once the importance of union among the states, and the weakness of those ties by which that union was secured under the old system, projected the convention which led to our present government. It is an historical and undeniable fact that the present government grew out of the weakness of the old confederation, and was proposed as a remedy for that weakness. The design was to substitute coercion for requisition: and this it was impossible to effect without impairing to a certain extent the sovereignty of the several states; for a sovereign cannot be rightfully coerced; and by creating and submitting to this power of coercion, in the federal government, the states consent to yield their sovereignty over the subjects ceded, and in those respects to bow down to the sovereignty of the federal government. Hence it is merely idle and declamatory to talk in this case, about the prostration of the state sovereignties; since the states themselves, who were perfectly competent to it, have agreed to this prostration, in certain respects; and the only question is whether this be one of the respects in which they have so agreed to lower the flag of the state. It results, too, from this view of the subject that the federal constitution, being intended as a remedy for the defects of the old confederation and composed of powers made up of concessions from the state sovereignties, for certain purposes of general good, ought to be ex

pounded remedially and benignly, in reference to the purposes for which it was expressly ordained. These purposes as announced in the preamble, are, "to form a more perfect union, to establish justice, to insure domestic tranquillity, to provide for the common defence--to promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." Every grant of power in the constitution has reference to the one or the other of these general objects; and hence in construing the grant, it is proper to look to the object for which it was made, and give it such a construction as will attain the object which the parties to the instrument had in view. Let me not be misunderstood, sir. My duty to my client does not require me to become the advocate of what has been called constructive power. But by constructive power what has been always understood? Nothing more than that a power shall not be drawn, by inference merely, either from the general expressions of the preamble or any other part of the constitution, that the power must be expressly granted: But it has never been contended that the details by which a granted power shall be carried into effect, must also be found in the constitution. The power once given, the modus operandi, it has always been conceded, is left wholly to congress. The constitution says, for example, that congress shall have power to lay and collect taxes, &c.; here the constitution stops on this subject-it does not proceed to limit congress either in the selection of the subjects of taxation, or in the rate of assessment, or in the mode of collection. The most rigorous interpreter of the constitution has never required more than that the general grant of the power in question shall be found upon the face of the constitution: nor has he ever denied that in examining the character of a granted power it was proper to look to the pre-existing evil which that grant was intended to remedy; nor to have reference to the purpose for which the grant was made, and to give it a construction commensurate with that purpose. These principles are so simple and so obviously just, that I should consider myself as insulting the understanding of the court, by attempting to render them more simple and obvious by argu

ment. I consider myself, then, as standing completely within the pale of those who have uniformly repelled all constructive. powers under the constitution, when I assume as the premises from which I mean to deduce my argument, the following principles:

1. That the power claimed by any branch of the federal government, must be expressly given by the constitution and not drawn by implication from it.

2. That in considering a power thus expressly given, we are to take into view the character of that power, the evil which it was intended to remedy, and the purpose for which it was given.

3. That such an exercise of that power shall be allowed, as will remove the evil and accomplish the purpose.

4. That we are not to look for the details of that power and the mode of exercising it, in the constitution; all which are left to congress, under the general grant of power to carry into effect any power given to either branch of the general govern

ment.

I beg leave to submit an illustration of these principles: congress shall have power to provide for calling forth the militia, to execute the laws of the union, suppress insurrections, and repel invasions."

What was the pre-existing mischief which this grant of power was intended to remedy? It was, obviously, the ineffi cacy of those requisitions which alone could be made under the old confederation.

But the constitution, while it expressly grants to congress this power, to provide for calling forth the militia, does not affect to settle the details by which this power shall be exercised. The mode of providing for calling them forth, is left wholly to congress, without any restriction or limitation what

ever.

The mode which they have adopted, is to authorize the president to call upon the executives of the several states, for their respective quotas of militia.

Now, would it be competent to the governor of any state to resist the call of the president on the ground that it was not

expressly written in the constitution that the president shall have the power of issuing his mandate to the state executives, requiring them to call forth their quotas of militia---that this was an invasion of the sovereignties of the states---and hence that the act of congress affecting to give him that power was a violation of the constitution? If such an objection should be made, would not this answer be completely satisfactory---that this is one of the instances in which the states have ceded their sovereignty to the general government---that they had given up the sword for the general good---that they had given to congress the power (not themselves, to call forth the militia, but) to provide for calling them forth---that as to the mode of the provision, the states, who were the parties to the compact, had left it to congress, without explanation or qualification, and thereby had promised submission to the means which congress in their wisdom, should devise---that to talk of placing a restriction now, by the contumacy of any one state, on this power, left open and unlimited by the constitution, would be, to claim for a single state, the right of amending the constitution at pleasure, and, therefore, would be a direct infraction of the amendatory provision of the constitution itself? Could any candid and reasonable man resist the force of such an answer? Would Virginia resist it? Has she resisted it? Has a governor of Virginia ever refused to yield obedience to the mandate of the president, under the notion that by doing so, he prostrated the sovereignty of the state? And yet the executive of the state is a co-ordinate body with the judiciary of the state-a body no less dignified-and, upon this notion of a separate state sovereignty, wielding a portion of that sove reignty, certainly not of less importance than that which belongs to the state judiciary. Like the judiciary, too, the governor holds his commission from the state; he is responsible to the state alone, and moves in a sphere as distinct from that of the president, as the state judiciary does from that of the federal government. The connexion between the state and federal executives, and the dependence of the former upon the latter, in the instance under consideration, does not pro No. XXIII.

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ceed from any direct proposition in the constitution, that this connexion and dependence shall exist: but it results inevitably from that express and unqualified grant of power which the states have made to congress, of providing the means of calling forth the militia; and that promise, which every grant of power implies, of submitting to the means which shall be devised.

Now, sir, let us proceed from this illustration to the case at bar. According to the third article and second section of the constitution," the judicial power of the United States shall extend to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority."

Is this a constructive grant of power to the judiciary of the United States? Is it not, on the contrary, express and imperative, in the strongest terms? Is there a power given to any other branch of the federal government, in terms more direct, more clear and strong? Observe--it is not said that the judicial power of the United States may extend, but that it shall extend, to all cases arising under treaties. What shall be the mode in which it shall be extended, is not, indeed, defined in the constitution, any more than it is defined what shall be the means which congress shall provide for calling forth the militia. Such a definition would go beyond the object of a constitution, which is to fix fundamental principles, and not to adjust details. But the mode of extending this judicial power of the United States is given to congress; for to congress is given the power "to make all laws which shall be necessary and proper for carrying into execution all powers vested by the constitution in any department of the government of the United States." Now, sir, let it be observed-here is an express power given to the judicial department of the United States, over all cases arising under treaties-and express power given to congress to make all laws necessary and proper to carry this judicial power into execution. There is nothing constructive here, sir: it is all express and positive. Let it be further observed, that on this grant of power to congress to extend the judicial