two classes; those, which are political in their character, as an exercise of sovereignty; and those, which more especially regard the private rights of individuals. In the latter, the prohibition is absolute and universal. In the former, it is sometimes absolute, and scmetimes subjected to the consent of congress. It will, at once, be perceived, how full of difficulty and delicacy the task was to reconcile the jealous tenacity of the states over their own sovereignty, with the permanent security of the national government, and the inviolability of private rights. The task has been accomplished with eminent success. If every thing has not been accomplished, which a wise forecast might have deemed proper for the preservation of our national rights and liberties, in all political events, much has been done to guard us against the most obvious evils, and to secure a wholesome administration of private justice. To have attempted more, would probably have endangered the whole fabric; and thus have perpetuated the dominion of misrule and imbecility.

§ 1401. It has been already seen, and it will hereafter more fully appear, that there are implied, as well as express, prohibitions in the constitution upon the power of the states. Among the former, one clearly is, that no state can control, or abridge, or interfere with the exercise of any authority under the national government. And it may be added, that state laws, as, for instance, state statutes of limitations, and state insolvent laws, have no operation upon the rights or contracts of the United States.3

1 See Ogden v. Saunders, 12 Wheat. R. 334, 335.

2 1 Kent's Comm. Lect. 19, p. 382.

3 United States v. Wilson, 8 Wheat. R. 253; United States v. Hoar, 2 Mason R. 311.

§ 1402. And here end our commentaries upon the first article of the constitution, embracing the organization and powers of the legislative department of the government, and the prohibitions upon the state and national governments. If we here pause, but for a moment, we cannot but be struck with the reflection, how admirably this division and distribution of legislative powers between the state and national governments is adapted to preserve the liberty, and promote the happiness of the people of the United States. To the general government are assigned all those powers, which relate to the common interests of all the states, as comprising one confederated nation. While to each state is reserved all those powers, which may affect, or promote its own domestic interests, its peace, its prosperity, its policy, and its local institutions. At the same time, such limitations and restraints are imposed upon each government, as experience has demonstrated to be wise to control any public functionaries, or as are indispensable to secure the harmonious operations of the Union.1

§ 1403. A clause was originally proposed, and carried in the convention, to give the national legislature a negative upon all laws passed by the states, contravening, in the opinion of the national legislature, the articles of the Union, and treaties subsisting under its authority. This proposition was, however, afterwards negatived; and finally abandoned." A more acceptable substitute

11 Tuck. Black. Comm. App. 314.

2 Journal of Convention, 68, 86, 87, 104, 107, 136, 183, 283; North American Review, October, 1827, p. 264, 266; 2 Pitkin's History, 261.

This seems to have been a favourite opinion of Mr. Madison, as well as of some other distinguished statesmen. North American Review, October, 1827, p. 264, 265, 266; 2 Pitkin's History, 251, 259.

was found in the article, (hereafter to be examined,) which declares, that the constitution, laws, and treaties of the United States shall be the supreme law of the land.

CHAPTER XXXVI.

EXECUTIVE DEPARTMENT · ORGANIZATION OF.

§ 1404. In the progress of our examination of the constitution, we are now arrived at the second article, which contains an enumeration of the organization and powers of the executive department. What is the best constitution for the executive department, and what are the powers, with which it should be entrusted, are problems among the most important, and probably the most difficult to be satisfactorily solved, of all, which are involved in the theory of free governments.1 No man, who has ever studied the subject with profound attention, has risen from the labour without an increased and almost overwhelming sense of its intricate relations, and perplexing doubts. No man, who has ever deeply read the human history, and especially the history of republics, but has been struck with the consciousness, how little has been hitherto done to establish a safe depositary of power in any hands; and how often in the hands of one, or a few, or many, of an hereditary monarch, or an elective chief, the executive power has brought ruin upon the state, or sunk under the oppressive burthen of its own imbecility. Perhaps our own history, hitherto, does not establish, that we have wholly escaped all the dangers; and that here is not to be found, as has been the case in other nations, the vulnerable part of the republic.

§ 1405. It appears, that the subject underwent a very elaborate discussion in the convention, with much

1 See 2 Elliot's Deb. 358; 1 Kent's Comm. Lect. 13, p. 255, 256.

diversity of opinion; and various propositions were submitted of the most opposite character. The Federalist has remarked, that there is hardly any part of the system, the arrangement of which could have been attended with greater difficulty; and none, which has been inveighed against with less candor, or criticised with less judgment.1

§ 1406. The first clause of the first section of the second article is as follows: "The executive power "shall be vested in a President of the United States "of America. He shall hold his office during the term "of four years; and together with the Vice-President, "chosen for the same term, be chosen as follows."

§ 1407. Under the confederation there was no national executive. The whole powers of the national government were vested in a congress, consisting of a single body; and that body was authorized to appoint a committee of the states, composed of one delegate from every state, to sit in the recess, and to delegate to them such of their own powers, not requiring the consent of nine states, as nine states should consent to. This want of a national executive was deemed a fatal defect in the confederation.

§1408. In the convention, there does not seem to have been any objection to the establishment of a national executive. But upon the question, whether it should consist of a single person, the affirmative was carried by a vote of seven states against three. The term of service was at first fixed at seven years, by a vote of five states against four, one being divided. The term was afterwards altered to four years, upon the report of a

1 The Federalist, No. 67.

2 Confederation, Art. 9, 10.

3 Journ. of Convention, 68, 89, 96, 136.