War of the Rebellion: Serial 127 Page 1160 CORRESPONDENCE, ETC.

Search Civil War Official Records

to encircle. The strongest passions and most dangerous weaknesses of the human breast-ambition, avarice, vanity, the honorable or venial love of fame-are all in conspiracy against the desire and duty of peace. (See Federalist, p. 452.)

In connection with this remark of Mr. Madison, it may not be amiss to add one from Mr. Calhoun. That great and good men, who may justly be styled the champion of State rights and constitutional liberty, in the first volume of his works, PAGE361, while speaking of the war which was forced upon Mr. Madison, while President, by Great Britain, says:

It did more, for the war, however just and necessary, gave a strong impulse adverse to the Federal and favorable to the national line of policy. This is indeed one of the unavoidable consequences of war and can be counteracted only by bringing into full action the negatives necessary to the protection of the reserved powers. These would of themselves have the effect of preventing wars so long as they could be honorably and safely avoided, and, when necessary, of arresting, to a great extent, the tendency of the Government to transcend the limits of the Constitution during its prosecution and of correcting all departures after its termination. It was by force of the tribunitial power that the plebeians retained for so long a period their liberty in the midst of so many wars.

I beg to call special attention to the portion of the above quotation which I have italicized. Having rested the constitutionality of the conscription act upon the power given to Congress to raise armies, you enunciate a doctrine which, I must be pardoned for saying, struck me with surprise; not that the doctrine was new, for its was first proclaimed I believe almost as strongly by Mr. Hamilton in the Federalist, but because it found an advocate in you, whom I had for many years regarded as one of the ablest and boldest defenders of the doctrines of the State rights school in the old Government. Your language is:

I hold that when a specific power is granted by the Constitution, like that now in question, to raise armies, Congress is the judge whether the law passed for the purpose of executing that power in necessary and proper.

Again you say:

The true and only test is tr the law is intended and calculated to carry out the object, whether it devises and creates and instrumentality for executing the specific power granted and if the answer be in the affirmative, the law is constitutional.

From this you argue that the conscription act is calculated and intended to raise armies, and therefore constitutional. I am not aware that the proposition was ever stated more broadly in favor of unrestrained Congressional power by Webster, Story, or any other statesman or jurist of the Federal school. This is certainly not the doctrine of the Republican party of 1789 as set forth in the Virginia and Kentucky resolutions. The Virginia resolutions use the following language, that-

It (the General Assembly of Virginia) views the powers of the Federal Governments as resulting from the compact to which the States are parties, as limited by the plain sense and intention of the instrument constituting that compact, as no further valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers not granted by said compact, the States who are parties thereto have the right and are in duty bound to interpose for arresting the progress of the evil, and for maintaining within their respective limits the authorities, rights, and liberties appertaining to them. That the General Assembly doth also express its deep regret that a spirit has in sundry instances been manifested by the Federal Government to enlarge its powers by a forced construction of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases-which, having been copied from the very limited grant of powers in the former articles of confederation, were the less liable to the misconstrued-so as to destroy the meaning and effect of the particular enumeration