supreme court should decide it to be constitutional, the decision would not bind the states, because the subject matter of any such law, does not come within the powers delegated to the general government. In cases like these, it can hardly be supposed that the several states, in the formation of the federal constitution, intended entirely to resign to the supreme court, the right not merely of construing that compact, for this is not doubted, but of extending it by construction to matters not contemplated by it.

How far these remarks may apply by way of analogy to the case of enforcing the decision of an arbitrator, appointed by the United States and a foreign government, in relation to disputed boundaries between the foreign government and one of the states; and how far this point ought to depend upon the inquiry, whether the state whose territory is concerned, had previously consented to such arbitration or not; or how far these remarks may be considered applicable to the case of a state, which has forcibly taken possession of a territory, which, agreeably to a decision of the supreme court, is protected by treaties made with the United States, is submitted to the discerning reader.

Let it be supposed, further, that congress should require the justices of the peace holding commissions under the several states, to perform certain acts when requested, under a certain penalty, there can be no doubt, that though such law might be a sufficient authority to the justice to perform the act, so far as the United States is concerned, yet it would be wholly void as to the penalty; because the subject matter of the law, so far as requiring a state officer to perform any act under a penalty, does not fall within any provision of the federal constitution. It is true, the state officer may lawfully do the act for the sake of the fee, which he may be entitled to claim for it under the act of congress; but in any other respect his services will be merely gratuitous. Who then, it may be asked, is to decide whether a certain power is granted to congress in the federal constitution or not? It seems, that the supreme court has conclusive and unquestionable jurisdiction to decide, that a certain power is not granted; that the court has also conclusive jurisdiction to decide that a certain power is incidental, that is to say, absolutely necessary to the exercise of some

other power expressly granted in the constitution, and consequently that such incidental power is also granted. But, unless they determine such power, not being an express one, to be thus incidental, they cannot bind the state by a decision, that the law made by virtue of it, is constitutional. So, the supreme court cannot bind the states by a decision, that a certain power is incident to a certain other power, where such supposed incident power is expressly prohibited in the constitution. But, if the constitution does not expressly prohibit the exercise of the power, decided by the court to be incidental, the decision of the court will conclude the states, even on the supposition that it is erroneous in fact. Because, where the supreme court has jurisdiction at all, as no other tribunal is provided for the correction of errors, its decision must be taken for as near an approximation to absolute right, as the fallibility of human nature permits; and consequently should be submitted to by the states, who have so far constituted that court their final arbitrator.

The express words of the constitution of the United States are, that "the constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made &c. It is plain then, that it is only those laws which are made in pursuance of the constitution, that will bind the state courts, even although sustained by a decision of the supreme court, unless that court has constitutionally a jurisdiction over the subject matter. In the case however of the most manifest usurpation of power on the part of congress, it would be highly unjust as well as inexpedient, for any state to array itself against the United States. For, an unconstitutional act can never with propriety be ascribed to the people of the union, who have expressly refused to congress the power to pass any unconstitutional law. Until the people have received notice of it, and have had a full opportunity of learning the true state of the case, and of electing another set of public officers, any such unconstitutional act should be ascribed to the general administration only. Till that time, any state which considers itself aggrieved, will best consult its interests, by restricting the exercise of its powers to endeavors to enlighten the public mind, and, in this way, induce them to elect wiser legislators.

CHAPTER VI.

Of the rights reserved to the people of the United States; not being granted either to the general government, or to the state governments.

In the formation of the federal constitution, it was judged best, on the whole, though there was considerable difference of opinion in relation to the subject, not to introduce into it any bill of rights. The reason for excluding it, was principally, because, it was thought, that if no bill of rights was inserted, all rights and liberties not relinquished to the general government, in the constitution, either in express terms, or by necessary implication, would be considered as retained by the people; while, on the other hand, if a bill of rights were introduced in the constitution, and any right or liberty chanced to be omitted in the enumeration, such right or liberty so omitted, would be considered as relinquished to the general government, by implication. Some of the members of the state conventions, however, and particularly of the Virginia convention, where this subject was thoroughly discussed, were strongly in favor of a bill of rights, and some of the amendments, which were afterwards made to the constitution in consequence of the strenuous efforts of those members, contain in express terms a reservation to the people, of certain rights and liberties, which it would be difficult to show congress had any right to interfere with, independently of such reservation. These rights, however, were very properly reserved to the people in express terms, for the purpose of avoiding, as much as practicable, all doubts in relation to the subject. For the same reason, two clauses were inserted among these amendments, declaring in substance, that powers not delegated by the constitution are retained; and, that a partial enumeration of rights should not be construed to deny or disparage rights not contained in it.

In a state of nature, the rights of an individual might be

summed up in a single expression, viz, that he had a right to do whatever he had a power given him by nature to do, provided he violated no precept of religion, and was guilty of no wrong to others. But, in the innumerable relations of organized society, though all a man's rights may be summed up in a manner almost as brief, viz, that he is restrained by no law or duty from doing anything which does not violate any rule of religion or morality, and which does not infringe any of the positive laws or institutions of society; yet, it will be best in order to furnish a more distinct and clear idea of these rights, to take a review of the more important of them separately. For this purpose, since no particular order is observed in the constitution, none needs be observed here.

1. Religious Freedom. Under the first amendment of the constitution, congress is prohibited from 'making any law respecting an establishinent of religion, or prohibiting the free exercise thereof.' The reason of this prohibition may be traced in part, to the general spirit of toleration, which prevails throughout the United States. It is not a necessary conclusion however, that all the various sects are thus tolerant ; but, as the population is divided into a great number of different sects, no single one of which constitutes a majority of the whole, it would be vain for any particular sect, to encourage thoughts of being established as the religion of the whole union. As therefore, there is no probability that any particular sect will ever be able to gain an ascendancy in this country by means of political power and as unprofitable contests for that object, would create rancorous disputes among those sects, and tend to bring the general cause of Christianity into disesteem with the feeble minded, and give an occasion to the adversary,' it has been thought best to provide for a general toleration of religion. The power to make regulations in regard to religion, therefore, must remain in the people of the United States; and though at first sight it might seem, that the citizens of each state might authorize their state rulers to impose religious restraints, yet, as this would interfere with Art. IV, Sect. 2, of the Federal Constitution, it seems that it cannot constitutionally be done.

2. Freedom of speech and of the press. By the same amendment congress is prohibited from passing any law, abridging

the freedom of speech or of the press. These two rights are not further noticed here, being made the subject of chapter II, in part II.

3. The right of the citizens to bear arms. The second amendment to the constitution, declares, that 'the right of the people to keep and bear arms, shall not be infringed.' The reason assigned in the amendment for this restriction on the power of congress, is sufficient to show its true construction. This reason is, because a well regulated militia is necessary to the security of a free state.' Certainly, it is impossible to provide any other mode of defence which shall be at the same time so safe so cheap, and so effectual as that of a well organized militia. For, every able bodied man, with the exception of those who are exempted because they are engaged in the discharge of other public duties, is bound to assist in the public defence; and consequently, with the exception of the small number referred to, the number of the whole militia of the United States, is limited only by that of its effective citizens.

The chief excellence of the militia system, is that every citizen at a moment's warning becomes a soldier; and when the exigency is over, at a moment's warning retires again to the calm and usual pursuits and occupations of peace. To repel a sudden invasion of a foreign enemy; to put down a domestic insurrection at its first commencement; to protect the country from any attempt to usurp power by persons not confided with it, are occasions, in which the policy of the militia system is very apparent. Another advantage, which however is not quite so obvious, is the assistance which it is always ready to lend the civil arm of the government; in preserving domestic peace and tranquillity; in the execution of the process of the law; and in suppressing the tumults and riots and other disorders of the less informed citizens, when under the influence of their own unruly passions, whether excited by some unfortunate occasion, or exasperated by the false reasonings or representations of designing and unprincipled leaders or declaim

ers.

The influence of the militia system in these last cases, is less perceived by the orderly citizens, because it is so much felt by those whose irregularity of conduct can only be restrained by the consciousness of a superior controlling power, which