University of Virginia Library

TO M. L. HURLBERT.

I recd. Sir, tho' not exactly in the due time,
your letter of April 25, with a copy of your pamphlet,
on the subject of which you request my opinions.

With a request opening so wide a field, I could not
undertake a full compliance, without forgetting the
age at which it finds me, and that I have other
engagements precluding such a task. I must hope
therefore you will accept in place of it, a few remarks
which tho' not adapted to the use you had contemplated,
may manifest my respect for your wishes,
and for the subject which prompted them.

The pamphlet certainly evinces a very strong
pen, & talents adequate to the discussion of constitutional
topics of the most interesting class. But
in doing it this justice, and adding with pleasure,
that it contains much matter with which my views
of the Constitution of the U. S. accord; I must add
also that it contains views of the Constitution from
which mine widely differ.

I refer particularly to the construction you seem
to put on the introductory clause "We the people"
and on the phrases "common defence & genl.
welfare." Either of these, if taken as a measure of
the powers of the Genl. Govt. would supersede the
elaborated specifications which compose the Body of
the Instrument, in contravention to the fairest rules
of interpretation. And if I am to answer your
appeal to me as a witness, I must say that the real
measure of the powers meant to be granted to
Congress by the Convention, as I understood and
believe, is to be sought in the specifications, to be
expounded indeed not with the strictness applied to
an ordinary statue by a Court of Law; nor on the
other hand with a latitude that under the name of

means for carrying into execution a limited Government,
would transform it into a Government without
limits.

But whatever respect may be thought due to the
intention of the Convention, which prepared &
proposed the Constitution, as presumptive evidence
of the general understanding at the time of the
language used, it must be kept in mind that the only
authoritative intentions were those of the people of
the States, as expressed thro' the Conventions which
ratified the Constitution.

That in a Constitution, so new, and so complicated,
there should be occasional difficulties & differences in
the practical expositions of it, can surprize no one;
and this must continue to be the case, as happens to
new laws on complex subjects, until a course of practice
of sufficient uniformity and duration to carry
with it the public sanction shall settle doubtful
or contested meanings.

As there are legal rules for interpreting laws, there
must be analogous rules for interpreting constns.
and among the obvious and just guides applicable
to the Constn. of the U. S. may be mentioned—

1.

• The evils & defects for curing which the
  Constitution was called for & introduced.

2.

• The comments prevailing at the time it was
  adopted.

3.

• The early, deliberate & continued practice under
  the Constitution, as preferable to constructions
  adapted on the spur of occasions, and subject to
  the vicissitudes of party or personal ascendencies.

On recurring to the origin of the Constitution and
examining the structure of the Govt. we perceive
that it is neither a Federal Govt. created by the State
Govts. like the Revolutionary Congress; nor a consolidated
Govt. (as that term is now applied,) created
by the people of the U. S. as one community, and
as such acting by a numerical majority of the
whole.

The facts of the case which must decide its true
character, a character without a prototype, are
that the Constitution was created by the people,
but by the people as composing distinct States, and
acting by a majority in each:

That, being derived from the same source as the
constitutions of the States, it has within each State,
the same authority as the Constitution of the State,
and is as much a Constitution, in the strict sense of
the term, as the constitution of the State:

That, being a compact among the States in their
highest sovereign capacity, and constituting the
people thereof one people for certain purposes, it is
not revocable or alterable at the will of the States
individually, as the constitution of a State is revocable
& alterable at its individual will:

That the sovereign or supreme powers of Govt.
are divided into the separate depositories of the
Govt. of the U. S. and the Govts. of the individual
States:

That the Govt. of the U. S. is a Govt. in as strict
a sense of the term, as the Govts. of the States;
being, like them, organized into Legislative, Executive

& Judiciary depts. operating, like them, directly
on persons & things, and having like them the
command of a physical force for executing the
powers committed to it:

That the supreme powers of Govt. being divided between
different Govts. and controversies as to the
landmarks of jurisdiction being unavoidable, provision
for a peaceable & authoritative decision of
them was obviously essential:

That, to leave this decision to the States, numerous
as they were & with a prospective increase, would
evidently result in conflicting decisions subversive
of the common Govt. and of the Union itself:

That, according to the actual provision against
such calamities, the Constitution & laws of the
U. S. are declared to be paramount to those of the
individual States, & an appellate supremacy is
vested in the Judicial power of the U. S.:

That as safeguards agst. usurpations and abuses
of power by the Govt. of the U. S. the members of its
Legislative and the head of its Executive Department,
are eligible by & responsible to, the people
of the States or the Legislatures of the States; and
as well the Judicial as the Executive functionaries
including the head, are impeachable by the Representatives
of the people in one branch of the Legislature
of the U. S. and triable by the Representatives
of the States in the other Branch:

States can, through forms of the constl. elective
provisions, controul the Genl. Govt. This has no
agency in electing State Govts., & can only controul

them through the functionaries particularly the
Judiciary of the General Government:

That in case of an experienced inadequacy of these
provisions, an ulterior resort is provided in amendments
attainable by an intervention of the States,
which may better adapt the Constitution for the
purposes of its creation.

Should all these provisions fail, and a degree of
oppression ensue, rendering resistence & revolution
a lesser evil than a longer passive obedience, there
can remain but the ultima ratio, applicable to extreme
cases, whether between nations or the component
parts of them.

Such, Sir, I take to be an outline view, tho' an
imperfect one, of the pol: system presented in the
Constitution of the U. S. Whether it be the best
system that might have been devised, or what the
improvements that might be made in it, are questions
equally beyond the scope of your letter and that of
the answer, with which I pray you to accept my
respects and good wishes.