University of Virginia Library

TO SPENCER ROANE.

Dear Sir,—I have recd., and return my thanks for
your obliging communication of the 20th instant.
The papers of "Algernon Sidney" have given their
full lustre to the arguments agst. the suability of
States by individuals, and agst. the projectile capacity
of the power of Congress within the "ten
miles square." The publication is well worthy
of a Pamphlet form, but must attract Public attention
in any form.

The Gordian Knot of the Constitution seems to
lie in the problem of collision between the federal
& State powers, especially as eventually exercised
by their respective Tribunals. If the knot cannot
be untied by the text of the Constitution it ought
not, certainly, to be cut by any Political Alexander.

I have always thought that a construction of the
instrument ought to be favoured, as far as the text
would warrant, which would obviate the dilemma
of a Judicial rencounter or a mutual paralysis;
and that on the abstract question whether the federal
or the State decisions ought to prevail, the sounder
policy would yield to the claims of the former.

Our Governmental System is established by a
compact, not between the Government of the U.
States, and the State Governments; but between the
States, as sovereign communities, stipulating each
with the others, a surrender of certain portions,
of their respective authorities, to be exercised by a
Common Govt. and a reservation, for their own
exercise, of all their other Authorities. The possibility
of disagreements concerning the line of division
between these portions could not escape attention;
and the existence of some Provision for terminating
regularly & authoritatively such disagreements, not
but be regarded as a material desideratum.

Were this trust to be vested in the States in their
individual characters, the Constitution of the U. S.
might become different in every State, and would
be pretty sure to do so in some; the State Govts.
would not stand all in the same relation to the General
Govt., some retaining more, others less of sovereignty;
and the vital principle of equality, which cements
their Union thus gradually be deprived of its virtue.
Such a trust vested in the Govt. representing the
whole and exercised by its tribunals, would not be
exposed to these consequences; whilst the trust

itself would be controulable by the States who directly
or indirectly appoint the Trustees: whereas
in the hands of the States no federal controul direct
or indirect would exist the functionaries holding
their appointments by tenures altogether independent
of the General Gov.t.

Is it not a reasonable calculation also that the
room for jarring opinions between the National &
State tribunals will be narrowed by successive decisions
sanctioned by the Public concurrence; and
that the weight of the State tribunals will be increased
by improved organizations, by selections
of abler Judges, and consequently by more enlightened
proceedings? Much of the distrust of these
departments in the States, which prevailed when
the National Constitution was formed has already
been removed. Were they filled everywhere, as they
are in some of the States, one of which I need not
name, their decisions at once indicating & influencing
the sense of their Constituents, and founded on
united interpretations of constitutional points, could
scarcely fail to frustrate an assumption of unconstitutional
powers by the federal tribunals.

Is it too much to anticipate even that the federal
& State Judges, as they become more & more coordinate
in talents, with equal integrity, and feeling,
alike the impartiality enjoined by their oaths, will
vary less & less also in their reasonings & opinions
on all Judicial subjects; and thereby mutually contribute
to the clearer & firmer establishment of the
true boundaries of power, on which must depend

the success & permanency of the federal republic,
the best Guardian, as we believe, of the liberty, the
safety, and the happiness of men. In these hypothetical
views I may permit my wishes to sway too
much my hopes. I submit the whole nevertheless
to your perusal, well assured that you will approve
the former, if you cannot join fully in the latter.

Under all circumstances I beg you to be assured
of my distinguished esteem & sincere regard.