University of Virginia Library

TO SPENCER ROANE.

Dear Sir,—I recd. more than two weeks ago, your
letter of Apl. 17. A visit to a sick friend at a distance,
with a series of unavoidable attentions have prevented
an earlier acknowledgment of it.

Under any circumstances I should be disposed
rather to put such a subject as that to which it
relates into your hands than to take it out of them.
Apart from this consideration, a variety of demands
on my time would restrain me from the task of
unravelling the arguments applied by the Supreme
Court of the U. S. to their late decision.[23] I am

particularly aware moreover that they are made to
rest not a little on technical points of law, which
are as foreign to my studies as they are familiar to
yours.

It is to be regretted that the Court is so much in
the practice of mingling with their judgments pronounced,
comments & reasonings of a scope beyond
them; and that there is often an apparent disposition
to amplify the authorities of the Union at the expence
of those of the States. It is of great importance
as well as of indispensable obligation, that the
constitutional boundary between them should be
impartially maintained. Every deviation from it
in practice detracts from the superiority of a Chartered
over a traditional Govt. and mars the experiment
which is to determine the interesting Problem
whether the organization of the Political system
of the U. S. establishes a just equilibrium; or tends
to a preponderance of the National or the local
powers, and in the latter case, whether of the national
or of the local.

A candid review of the vicissitudes which have
marked the progress of the General Govt. does not
preclude doubts as to the ultimate & fixed character
of a Political Establishment distinguished by so
novel & complex a mechanism. On some occasions
the advantage taken of favorable circumstances
gave an impetus & direction to it which seemed to
threaten subversive encroachments on the rights

& authorities of the States. At a certain period we
witnessed a spirit of usurpation by some of these
on the necessary & legitimate functions of the former.
At the present date, theoretic innovations at least
are putting new weights into the scale of federal
sovereignty which make it highly proper to bring
them to the Bar of the Constitution.

In looking to the probable course and eventual
bearing of the compound Govt. of our Country, I
cannot but think that much will depend not only
on the moral changes incident to the progress of
society; but on the increasing number of the members
of the Union. Were the members very few, and
each very powerful, a feeling of self-sufficiency would
have a relaxing effect on the bands holding them
together. Were they numerous & weak, the Gov.
over the whole would find less difficulty in maintaining
& increasing subordination. It happens
that whilst the power of some is swelling to a great
size, the entire number is swelling also. In this
respect a corresponding increase of centripetal &
centrifugal forces, may be equivalent to no increase
of either.

In the existing posture of things, my reflections
lead me to infer that whatever may be the latitude
of Jurisdiction assumed by the Judicial Power of
the U. S. it is less formidable to the reserved sovereignty
of the States than the latitude of power which
it has assigned to the National Legislature; & that
encroachments of the latter are more to be apprehended
from impulses given to it by a majority of

the States seduced by expected advantages, than
from the love of Power in the Body itself, controuled
as it now is by its responsibility to the Constituent
Body.

Such is the plastic faculty of Legislation, that
notwithstanding the firm tenure which judges have
on their offices, they can by various regulations be
kept or reduced within the paths of duty; more
especially with the aid of their amenability to the
Legislative tribunal in the form of impeachment.
It is not probable that the Supreme Court would
long be indulged in a career of usurpation opposed
to the decided opinions & policy of the Legislature.

Nor do I think that Congress, even seconded by
the Judicial Power, can, without some change in
the character of the nation, succeed in durable violations
of the rights & authorities of the States.
The responsibility of one branch to the people, and
of the other branch to the Legislatures, of the States,
seem to be, in the present stage at least of our political
history, an adequate barrier. In the ease of
the alien & sedition laws, which violated the general
sense as well as the rights of the States, the usurping
experiment was crushed at once, notwithstanding
the co-operation of the federal Judges with the
federal laws.

But what is to controul Congress when backed &
even pushed on by a majority of their Constituents,
as was the case in the late contest relative to Missouri,
and as may again happen in the constructive power
relating to Roads & Canals? Nothing within the

pale of the Constitution but sound arguments &
conciliatory expostulations addressed both to Congress
& to their Constituents.

On the questions brought before the Public by
the late doctrines of the Supreme Court of the U.
S. concerning the extent of their own powers, and
that of the exclusive jurisdiction of Congress over
the ten miles square and other specified places,
there is as yet no evidence that they express either
the opinions of Congress or those of their Constituents.
There is nothing therefore to discourage a
development of whatever flaws the doctrines may
contain, or tendencies they may threaten. Congress
if convinced of these may not only abstain from the
exercise of Powers claimed for them by the Court,
but find the means of controuling those claimed by
the Court for itself. And should Congress not be
convinced, their Constituents, if so, can certainly
under the forms of the Constitution effectuate a
compliance with their deliberate judgment and
settled determination.

In expounding the Constitution the Court seems
not insensible that the intention of the parties to
it ought to be kept in view; and that as far as the
language of the instrument will permit, this intention
ought to be traced in the contemporaneous expositions.
But is the Court as prompt and as careful in citing
and following this evidence, when agst. the federal
Authority as when agst. that of the States? (See the
partial reference of the Court to "The Federalist.")[24]

The exclusive jurisdiction over the ten miles square
is itself an anomaly in our Representative System.
And its object being manifest, and attested by the
views taken of it, at its date, there seems a peculiar
impropriety in making it the fulcrum for a lever
stretching into the most distant parts of the Union,
and overruling the municipal policy of the States.
The remark is still more striking when applied to
the smaller places over which an exclusive jurisdiction
was suggested by a regard to the defence &
the property of the Nation.

Some difficulty, it must be admitted may result
in particular cases from the impossibility of executing
some of these powers within the defined spaces,
according to the principles and rules enjoined by
the Constitution; and from the want of a constitutional
provision for the surrender of malefactors
whose escape must be so easy, on the demand of the
U. States as well as of the Individual States. It is
true also that these exclusive jurisdictions are in
the class of enumerated powers, to wch. is subjoined
the "power in Congress to pass all laws necessary
& proper for their execution." All however that
could be exacted by these considerations would be
that the means of execution should be of the most
obvious & essential kind; & exerted in the ways as

little intrusive as possible on the powers and police
of the States. And, after all, the question would
remain whether the better course would not be to
regard the case as an omitted one, to be provided
for by an amendment of the Constitution. In resorting
to legal precedents as sanctions to power,
the distinctions should ever be strictly attended to,
between such as take place under transitory impressions,
or without full examination & deliberation,
and such as pass with solemnities and repetitions
sufficient to imply a concurrence of the judgment
& the will of those, who having granted the power,
have the ultimate right to explain the grant. Altho'
I cannot join in the protest of some against the
validity of all precedents, however uniform & multiplied,
in expounding the Constitution, yet I am
persuaded that Legislative precedents are frequently
of a character entitled to little respect, and that
those of Congress are sometimes liable to peculiar
distrust. They not only follow the example of
other Legislative assemblies in first procrastinating
and then precipitating their acts; but, owing to the
termination of their session every other year at a
fixed day & hour, a mass of business is struck off,
as it were at shorthand, and in a moment. These
midnight precedents of every sort ought to have
little weight in any case.

On the question relating to involuntary submissions
of the States to the Tribunal of the Supreme
Court, the Court seems not to have adverted at all
to the expository language when the Constitution

was adopted; nor to that of the Eleventh Amendment,
which may as well import that it was declaratory,
as that it was restrictive of the meaning
of the original text. It seems to be a strange
reasoning also that would imply that a State in
controversies with its own Citizens might have less
of sovereignty, than in controversies with foreign
individuals, by which the national relations might be
affected. Nor is it less to be wondered that it should
have appeared to the Court that the dignity of a State
was not more compromitted by being made a party
agst. a private person than agst. a co-ordinate Party.

The Judicial power of the U. S. over cases arising
under the Constitution, must be admitted to be
a vital part of the System. But that there are
limitations and exceptions to its efficient character,
is among the admissions of the Court itself. The
Eleventh Amendment introduces exceptions if there
were none before. A liberal & steady course of
practice can alone reconcile the several provisions
of the Constitution literally at variance with each
other; of which there is an example in the Treaty
Power & the Legislative Power on subjects to which
both are extended by the words of the Constitution.
It is particularly incumbent, in taking cognizance
of cases arising under the Constitution, and in which
the laws and rights of the States may be involved,
to let the proceedings touch individuals only. Prudence
enjoins this if there were no other motive,
in consideration of the impracticability of applying
coercion to States

I am sensible Sir, that these ideas are too vague
to be of value, and that they may not even hint for
consideration anything not occurring to yourself.
Be so good as to see in them at least an unwillingness
to disregard altogether your request. Should any
of the ideas be erroneous as well as vague, I have
the satisfaction to know that they will be viewed
by a friendly as well as a candid eye.