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No. XXI.





It arrived only at its perfect and full de-
velopment within the last few ages, and
stands immoveable, by the accumulated
strength of all its past existence.
It came
into perfect being, not by revolution, not
by a change of principles, but by the na-
tive force of an internal life, which impell-
ed it to throw off a foreign incumbrance,
and stand free in the vigor of independ-
ant youth. It is a government of princi-
ples, not of prescription, nor of forms.
Its traditional forms are few; it did not
come down to us loaded with the corrupt-

Ir is never to be lamented when men are driven to search into the foundation of the commonwealth; as it is necessary for the conduct of life that the divine and abstract principles of virtue should have a conscious existence in the intellect, and should be frequently agitated and discuss ed; so, if we intend to maintain in their original purity and force, those ideas of authority, of right, and of obedience, upon which all government is founded, we must often reflect, and induce others to reflections of former ages, to be maintained by upon them, in their simplicity. It is ne- the timid and condemned by the wise. cessary to revive and fortify the spirit of the Constitution by frequent recurrence to the rights and opinions upon which it rests; tracing these to their principles, and casting an historic glance upon those conditions of society-those exigencies of humanity-from which they took their rise, and through which they became apparent; rights, in our own case, derived from a recognition of the imperious necessity of freedom to the full development of our nature; principles, grounded in human nature, tested by the experience of all time, and suggested as rules of legislation from an observation of the evils that arose upon their absence. Ours is not an hypothetical government; it was not erected upon an imaginary basis; the first fibres of its roots can be traced backward into the darkness of primeval liberty; its growth has been gradual through many centuries. VOL. IV. NO. III. NEW SERIES.


It is a government of necessity; it arose from necessity, and exists by necessity; it is therefore not subvertible while its moral conditions exist. But the necessity which gave it birth is not that with which the mathematics are conversant, nor the wants and desires of the grosser nature of man. The necessity with which our laws are in accordance is of a moral nature, and can be found only in the operation of moral causes.

In the course of history, philosophers observe series of events signifying the existence and operation of certain divine and moral laws, by which the superior destiny of man is distinguished above his physical and sensuous destiny. Governments founded like ours upon a recognition of of justice, of faith, of beneficence, of honor, of liberty and of constancy, are imperishable governments; and die only with the races which gave birth to them.


All other governments are liable to revolution, and to one or both of the fruits of revolution, the despotism of a multitude or the despotism of an individual.

If we fall then into either of these extremes, it must be when the great majority of those who study the wants of the people, and act for them in the business of legislation, become so far blinded to the moral necessities of those whose opinions they guide and influence, as to substitute for them scientific theories, the dreams of humanitarianism, or the schemes of their own ambition. Fortunately for us, the number of such citizens is so great, and their equality of will so level to the freedom of all, there is little danger but that all things shall long continue as they

sense of its own character, and attributes, and duty, the Supreme Court will declare its own incompetency to enact laws or construct policies. It will say to those legislators who attempt to impose their own duties upon its shoulders, "You alone are competent to this decision; it is not for us to express the will of the people, or to regulate the public economy. Where there is law, either evident or to be liberally or morally constructed, we can point it out or construct it, but we cannot make it.

When the law is clear and the application difficult we will aid you; but when the law does not exist, you must look for its grounds in the genius of the people and the necessity of the times, and not in our precedents.

Nor can the authority of the Executive be appealed to for the construction of constitutional law. In cases where neither law nor precedent can serve as guides, the Executive must indeed consult the spirit of the nation; but should that system be pursued-into which of late we have too much fallen-the electing of a president for the declared purpose of enforcing contested constructions of the Constitution, the day must come when all law shall lie at the mercy of executive construction; and the executive of to-day must become in that event the source of all power, until, after a period of four years, its authority is annihilated by another executive. By allowing the opinion of an executive to have any weight beside that which the character of worth and wisdom may bring with it, we admit the existence of a new legislative power, not recognized by the Constitution; a legislative power which lessens with its increase the efficacy of regular legislation, and which must, eventually, absorb everything to itself. True it is, the Executive has been entrusted with a power of forbidding a hasty and clearly unconstitutional legislation; but this power was given to the Executive, not as a law-making, but only as a regulative function. Legislative bodies may move precipitately, and illegally, since even their existence and conduct is limited by the supreme law of the land; nor are they free themselves from an ambition which leads them continually to encroach upon the functions of other members of the system. It is necessary that every member

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