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not appoint such officers, as it might those who are to perform duties of a more general nature for the public at large, such as mustering or disciplining the State militia, enforcing the State health and police laws, and the like. See Warner v. People, 2 Denio, 275; People v. Blake, 49 Barb. 9; State v. Kenyon, 7 Ohio, N. S. 546.

Such we believe to be the true doctrine regarding these municipalities. Instances have perhaps occurred in which legislative bodies, under the belief that interference in local matters was essential to the correction of local abuses, have disregarded the usual bounds which limit their action in this direction, and taken upon themselves the performance of duties not properly pertaining to the central authority. Whether, if this might rightfully be done, it would be likely to result in correcting more abuses than it would create, is not for us to speculate; it is enough that our institutions rest upon an acceptance of the doctrine that matters purely local are best, most economically, honestly, and efficiently managed by the people immediately concerned, who can see and know and comprehend and personally supervise them, and that the local communities should be expected to rely upon themselves for the correction of local evils, and not upon any distant, imperfectly informed and slightly interested body, which, while open to the same temptations as the local authorities, would be neither under the like restraint of interest, nor subject to have its doings exposed to the same watchful observation of the parties concerned.]



§ 281. LET it not, however, be supposed, that a Constitution, which is now looked upon with such general favor and affection by the people, had no difficulties to encounter at its birth. The history of those times is full of melancholy instruction on this subject, at once to admonish us of past dangers, and to awaken us to a lively sense of the necessity of future vigilance. The Constitution was adopted unanimously by Georgia, New Jersey, and Delaware. It was supported by large majorities in Pennsylvania, Connecticut, Maryland, and South Carolina. It was carried in the other States by small majorities, and especially in Massachusetts, New York, and Virginia by little more than a preponderating vote.1 Indeed, it is believed that in each of these States, at the first assembling of the conventions, there was a decided majority opposed to the Constitution. The ability of the debates, the impending evils, and the absolute necessity of the case, seem to have reconciled some persons to the adoption of it, whose opinions had been strenuously the other way.2 "In our endeavors," said Washington, "to establish a new general government, the contest, nationally considered, seems not to have been so much for glory as for existence. It was for a long time doubtful whether we were to survive, as an independent republic, or decline from our Federal dignity into insignificant and withered fragments of empire." 3

§ 282. It is not difficult to trace some of the more important causes which led to so formidable an opposition, and made the Constitution at that time a theme, not merely of panegyric, but of severe invective, as fraught with the most alarming dangers to public liberty, and at once unequal, unjust, and oppressive.

§ 283. Almost contemporaneously with the first proposition for

1 2 Pitk. Hist. 265, 268, 273, 279, 281; North Amer. Rev. Oct. 1827, p. 279 to 278. 2 2 Pitk. Hist. 266, 269, 281; 5 Marsh. Life of Wash. 132, 133, 188. [See Rives, Life of Madison, ch. 35; Hammond, Political History of New York, ch. 1; Life of Samuel Adams, ch. 60; Van Buren Political Parties, 57; Austin's Life of Gerry, II. ch. 2 and 3.]

8 5 Marshall's Life of Washington, 138.

a confederation, jealousies began to be entertained in respect to the nature and extent of the authority which should be exercised by the national government. The large States would naturally feel that in proportion as Congress should exercise sovereign powers, their own local importance and sovereignty would be diminished injuriously to their general influence on other States from their strength, population, and character. On the other hand, by an opposite course of reasoning, the small States had arrived nearly at the same result. Their dread seems to have been lest they should be swallowed up by the power of the large States in the general government, through common combinations of interest or ambition.1

§ 284. There was, besides, a very prevalent opinion that the interests of the several States were not the same; and there had been no sufficient experience during their colonial dependence and intercommunication to settle such a question by any general reasoning, or any practical results. During the period, therefore, in which the confederation was under discussion in Congress, much excitement and much jealousy were exhibited on this subject. The original draft submitted by Dr. Franklin, in July, 1775, contained a much more ample grant of powers than that actually adopted; for Congress were to be invested with power to make ordinances relating "to our general commerce or general currency," to establish posts, &c., and to possess other important powers of a different character.2 The draft submitted by Mr. Dickenson, on the 12th of July, 1776, contains less ample powers, but still more broad than the Articles of Confederation. In the subsequent discussions few amendments were adopted which were not of a restrictive character; and the real difficulties of the task of overcoming the prejudices, and soothing the fears of the different States, are amply displayed in the secret journals now made public. In truth, the continent soon became divided into two great political parties, "the one of which contemplated America as a nation, and labored incessantly to invest the Federal head with powers competent to the preservation of the Union; the other attached itself to the State authorities, viewed all the powers of Congress with jealousy, and assented reluctantly to measures


1 5 Marshall's Life of Washington, 130, 131; 4 Elliot's Debates, &c. 2 1 Secret Journals, 285, Art. 5.

8 Id., 290.

which would enable the head to act in any respect independently of the members."1 During the war, the necessities of the country confined the operations of both parties within comparatively narrow limits. But the return of peace, and the total imbecility of the general government, gave (as we have seen) increased activity and confidence to both.

§ 285. The differences of opinion between these parties were too honest, too earnest, and too deep to be reconciled or surrendered. They equally pervaded the public councils of the States and the private intercourse of social life. They became more warm, not to say violent, as the contest became more close and the exigency more appalling. They were inflamed by new causes, of which some were of a permanent, and some of a temporary character. The field of argument was wide; and experience had not as yet furnished the advocates on either side with such a variety of political tests as were calculated to satisfy doubts, allay prejudices, or dissipate the fears and illusions of the imagination.

§ 286. In this state of things the embarrassments of the country in its financial concerns, the general pecuniary distress among the people from the exhausting operations of the war, the total prostration of commerce, and the languishing unthriftiness of agriculture, gave new impulses to the already marked political divisions in the legislative councils. Efforts were made, on one side, to relieve the pressure of the public calamities by a resort to the issue of paper-money, to tender laws, and instalment and other laws, having for their object the postponement of the payment of private debts, and a diminution of the public taxes. On the other side, public as well as private creditors became alarmed from the increased dangers to property, and the increased facility of perpetrating frauds to the destruction of all private faith and credit. And they insisted strenuously upon the establishment of a government and system of laws which should preserve the public faith, and redeem the country from that ruin which always follows upon the violation of the principles of justice and the moral obligation of contracts. "At length," we are told,2" two great parties were formed in every State, which were distinctly marked, and which pursued distinct objects with systematic arrangement. The one struggled with unabated zeal for the exact observance of public and private engagements. The distresses of 2 5 Marsh. Life of Washington, 83.

1 5 Marsh. Life of Washington, 33.

individuals were, they thought, to be alleviated by industry and frugality, and not by a relaxation of the laws, or by a sacrifice of the rights of others. They were consequently uniform friends of a regular administration of justice, and of a vigorous course of taxation, which would enable the State to comply with its engagements. By a natural association of ideas, they were also, with very few exceptions, in favor of enlarging the powers of the Federal government and of enabling it to protect the dignity and character of the nation abroad, and its interests at home. The other party marked out for itself a more indulgent course. They were uniformly in favor of relaxing the administration of justice, of affording facilities for the payment of debts, or of suspending their collection, and of remitting taxes. The same course of opinion led them to resist every attempt to transfer from their own hands into those of Congress powers which were by others deemed essential to the preservation of the Union. In many of the States the party last mentioned constituted a decided majority of the people, and in all of them it was very powerful." Such is the language of one of our best historians in treating of the period immediately preceding the formation of the Constitution of the United States.1

§ 287. Without supposing that the parties here alluded to were in all respects identified with those of which we have already spoken, as contemporaneous with the confederation, it is easy to perceive what prodigious means were already in existence to oppose a new constitution of government, which not only transferred from the States some of the highest sovereign prerogatives, but laid prohibitions upon the exercise of other powers which were at that time in possession of the popular favor. The wonder, indeed, is not, under such circumstances, that the Constitution should have encountered the most ardent opposition, but that it should ever have been adopted at all by a majority of the States.

§ 288. In the convention itself which framed it, there was a great diversity of judgment, and upon some vital subjects an intense and irreconcilable hostility of opinion. It is understood


1 See also 5 Marshall's Life of Washington, 130, 131.

2 2 Pitk. Hist. 225 to 260; Dr. Franklin's Speech, 2 Amer. Museum, 534, 538; 3 Amer. Museum, 62, 66, 79, 157, 559, 560; 4 Elliot's Debates. Three members of the convention, Mr. Gerry of Massachusetts, and Mr. Mason and Mr. Randolph of Virginia, declined signing the Constitution; 3 Amer. Museum, 68. See also Mr. Jay's Letter in 1787; 3 Amer. Museum, 554 to 565.

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