Monday, July 30, 2007


"Aurelius Zoticus, a native of Smyrna, whom they also called 'Cook,' after his father's trade, incurred the emperor [Elagabalus's] thorough love and thorough hatred, and for the latter reason his life was saved. This Aurelius not only had a body that was beautiful all over, seeing that he was an athlete, but in particular he greatly surpassed all others in the size of his private parts. This fact was reported to the emperor by those who were on the look-out for such things, and the man was suddenly whisked away from the games and brought to Rome, accompanied by an immense escort, larger than Abgarus had had in the reign of Severus or Tiridates in that of Nero. He was appointed cubicularius [bed-chamber servant] before he had even been seen by the emperor, was honoured by the name of the latter's grandfather, Avitus, was adorned with garlands as at a festival, and entered the palace lighted by the glare of many torches. Sardanapalus [Elagabalus], on seeing him, sprang up with rhythmic movements, and then, when Aurelius addressed him with the usual salutation, "My Lord Emperor, Hail!" he bent his neck so as to assume a ravishing feminine pose, and turning his eyes upon him with a melting gaze, answered without any hesitation: 'Call me not Lord, for I am a Lady.'"

Roman troops killed Elagabalus, together with his mother, when he was just eighteen years of age. Their heads were cut off and their bodies dragged through the streets and then thrown into the Tiber.

Millard Fillmore: 1848 Presidential Candidate?

I have repeatedly expressed my admiration for Millard Fillmore, and so was delighted to see Big Mo’s post outlining the career and character of our 13th president. I wholeheartedly agree, for example, with Big Mo’s bottom-line assessment:
But like many of the forgotten presidents, and many of the so-called failures, Fillmore has gotten a raw deal from history. Although he served 2½ years and his party would not re-nominate him—and he would sink to obscurity following a second failed presidential attempt—Fillmore definitely deserves far better than he’s been treated.

Big Mo’s entries on the presidents are witty, charming and informative, and I urge anyone with even a passing interest in our country to read them.

Writing short biographies is a task that is impossible to execute without mistake – the very nature of the exercise means that the writer is trying to shoehorn an entire life into a short essay. I would never attempt anything so foolish or so creative. It is with this understanding, with thanks to Big Mo for daring the impossible, and cognizant of my own limitations that I will confine myself to posting, from time to time, nit picks about Big Mo’s posts. This is the first. Here goes.

Toward the beginning of Big Mo’s Fillmore post, he states:
A skilled lawyer and a man initially hungry for political power, Fillmore had the unfortunate luck to have lost the nomination to Zachary Taylor then be shoved aside as almost a non-entity for 16 months.

This sentence appears to imply that Fillmore was a leading candidate, or at least a viable candidate, for the Whig presidential nomination in 1848, ultimately secured by Zachary Taylor. After all, Millard presumably could not have “lost the nomination to” Taylor unless he made a reasonable run at that prize. I'm virtually positive Big Mo didn't mean this, because he later states that in 1848, "on the national level, no one knew [Fillmore]."

At all events, to the best of my knowledge, Fillmore was never a candidate for the Whig nomination in 1848, much less a viable one. Elbert B. Smith does not suggest this, so far as I can tell, in his The Presidencies of Zachary Taylor and Millard Fillmore. Likewise, in his magnificent and endless The Rise and Fall of the American Whig Party, Michael F. Holt devotes almost seventy pages (basically, Chapters 9 and 10) to reviewing in microscopic detail the joustings among the plethora of Whig candidates, including Taylor, Henry Clay, Daniel Webster, Supreme Court Justice John McLean of Ohio, Senator Thomas Corwin (also of Ohio), and General Winfield Scott. No mention of Millard anywhere.

Millard Fillmore was many things; but he does not seem to have been a candidate for the presidential nomination of the Whig party in 1848.

Monday, July 23, 2007

Kai Su, Teknon?

You scored as Augustus, You are Augustus! First emperor of the Romans and one of the greatest statesmen in the ancient world. You brilliantly eased the old Republic into the Principate and set the path for an empire that would last for centuries and form the underpinnings for all western civilization. Hail Caesar!









Antoninus Pius








Marcus Aurelius












Which Roman Emperor Are You?
created with

Saturday, July 21, 2007

The Wit and Wisdom of Cato the Elder IV

On extravagance:

"How can we expect to save a city, where people are prepared to pay more for a fish than for an ox?"

Thursday, July 19, 2007

Kurt Lash

I'm a big fan of Kurt Lash and his articles on the Ninth Amendment. I'm excited to see that the good Professor has yet another paper publicly available on SSRN, this time about the Tenth Amendment, "The Puzzling Persistence of a Missing Word: The Tenth Amendment, Popular Sovereignty and 'Expressly' Delegated Power." Here's the abstract:
Today, courts and commentators generally agree that early efforts to strictly limit the federal government to only expressly enumerated powers were decisively rebuffed by Chief Justice John Marshall in McCulloch v. Maryland. According to Marshall, the fact that the framers departed from the language of the Articles of Confederation and omitted the term “expressly” suggested that they intended Congress to have a broad array of implied as well as expressly delegated powers. As Supreme Court Justice Joseph Story later wrote, any attempt to read the Tenth Amendment as calling for a strict construction of federal power, “was neither more nor less, than [an] attempt to foist into the text the word 'expressly'. Modern courts often cite to McCulloch's “omitted text” analysis of the Tenth Amendment in support of broad interpretations of federal power. In fact, Marshall's point regarding the significance of the missing word “expressly” is probably one of the least controversial claims about the original understanding of Tenth Amendment as currently exists in legal commentary.

It is puzzling therefore to learn that courts and commentators during the early decades of the Constitution regularly inserted into their description of federal power the very word that Marshall insisted had been intentionally left out. James Madison, Alexander Hamilton, early Supreme Court Justice Samuel Chase, and numerous other members of the Founding generation insisted that Congress had only expressly delegated power. Upon investigation, it turns out that this rephrasing actually reflects the original understanding of the Tenth Amendment. Completely missed by generations of Tenth Amendment scholars, adding the phrase “or to the people” to the Tenth transformed the clause into a declaration of popular sovereignty. This declaration established what the Founders referred to as the principle of “expressly delegated powers,” meaning that Congress could utilize no other means except those necessarily incident to its enumerated responsibilities. Particularly when read in combination with the Ninth Amendment's declaration of the retained rights of the people, these twin assertions of popular sovereignty established a rule of strict construction - the very interpretive principle rejected by John Marshall in McCulloch v. Maryland.

How am I going to get any work done next week? I've got to sneak in time to read the articles on Dred Scott recently published in the Chicago-Kent Law Review (mentioned a few posts ago), and now Professor Lash's as well.

"The Clerkship from Hell"

Over at the Right Coast, Mike Rappaport tells an amazing story of a well-known federal appellate judge who is, apparently, a sadistic nut-job whose abusive behavior resulted in four clerks quitting in seven years.

My judge was, I'm happy to report, a dream, but my co-clerk did quit. Both my co-clerk and I started in late August. One day in October, I went out for a hair cut. When I returned, say around 2:30, my co-clerk (I'll call her "Deb") was not in her office. At first, I thought nothing of it, but after a while it seemed a bit odd. So I walked into the judge's office and asked her:

ME: Where's Deb?

JUDGE: Oh . . . Deb's not here . . .

ME: Oh?

JUDGE: I think she left . . .

ME: Oh?

JUDGE: I went in to talk with her about some things . . .

ME: Oh?

JUDGE: And she got upset . . .

ME: Oh?

JUDGE: And I think she left . . .

ME: Oh?

Piecing it together later, it seemed that the judge had used my absence to try to give Deb some gentle, constructive criticism, and Deb simply stormed out. Deb never returned, never even called to arrange to pick up her stuff (shoes, books). To this day, I have no idea what ever happened to her.

At all events, Deb's loss (or the loss of Deb) was my gain. I was the sole clerk for a couple of months until the judge could secure a replacement. What a great time I had!

A Bunch of New Dred Scott Articles

The latest issue of the Chicago-Kent Law Review is devoted to a "symposium" on Dred Scott. There are articles by Jack Balkin, Paul Finkelman, Mark Graber and others.

I have read only one of the articles, by Balkin and Sanford Levinson entitled "Thirteen Ways of Looking at Dred Scott." Unfortunately, I found it a lightweight affair, the sort of effort a prestigious academic dashes off between "real" articles, confident that some journal will take a second-rate stream-of-consciousness article because of the author's name.

It's also marred by Balkin's bizarre radical-leftist politics. It turns out that, on issues ranging from gay rights to Guantanamo and "what the Bush administration terms the 'global war on terror'" (note the obligatory quotation marks), conservatives are the intellectual descendants of Chief Justice Taney. Ho hum. Whatever.

I'll be reading the other articles and will report back on anything noteworthy I find.

Friday, July 13, 2007

The Wit and Wisdom of Cato the Elder III

On a man notorious for his dissolute and disreputable life:

"That man's mother thinks of it as a curse, not a blessing, if anyone prays that her son should survive her."

Monday, July 09, 2007

John Quincy Adams, Pimp!

Michael Holt reports a Nineteenth Century campaign slur that's got to run a close second to the alleged perversion of Martin Van Buren that I mentioned the other day:
[In the presidential campaign of 1828, Jackson supporters] disseminated propaganda . . . reminding voters that [Jackson] had been the victim of a corrupt and cynical bargain, pillorying the supposed misdeeds of the Adams administration, and lacerating the president himself as an effete intellectual snob who spoke Latin and quoted Voltaire; as a papist or an antipapist, depending upon the audience; and even as a former pimp for the czar of Russia.

John Quincy Adams was born in 1767 and served as an assistant to Francis Dana in St. Petersburg in 1781-82 -- he was fourteen years of age at the time!

All I can say is, Wow!

It's worth noting that in 1781-82, the "Czar" of Russia was Catherine the Great, and she was then over 50 years of age (born 1729). Maybe John Quincy brought her a horse!


I overlooked the fact that JQA served as Ambassador to Russia between 1809 and 1814. The tsar he supposedly pimped for was Alexander I. See this follow-up post for more details.

Sunday, July 08, 2007

The Wit and Wisdom of Cato the Elder II

On women:

"All mankind rule their wives, we Romans rule all mankind, and our wives rule us."

A Separate Civil War

I've mentioned Jonathan Dean Sarris' excellent A Separate Civil War: Communities in Conflict in the Mountain South before. There's a nice review of the book up at H-CivWar.

Above is the only known full view photo of the Dahlonega Mint building. At the time of this photo (1877 or 1878), the facility was operating as the North Georgia Agricultural College. Cadets of the school are lined up in formation in front of the former mint.

Saturday, July 07, 2007

Martin Van Buren, Pervert!

The presidential campaign of 1840 pitted Whigs William Henry Harrison and vice presidential candidate John Tyler against incumbent Democrats Martin Van Buren and Richard Mentor Johnson. The campaign is most famous for the Whigs' use of potent symbols -- Log Cabins and Hard Cider -- and slogans -- "Tippecanoe and Tyler too" -- to whip up support for their notably mediocre candidate.

However, the Whigs also did not hesitate to "go negative" on Van Buren. In the process, they managed to create one of the most bizarre caricatures in the history of American politics.

One of the Whigs' principal "attack ads" was a pamphlet that reprinted a speech by Charles Ogle, a Whig congressman from Pennsylvania, entitled "The Regal Splendor of the Presidential Palace." Much of the pamphlet was devoted to the opulent splendor in which Van Buren allegedly lived while the nation suffered through a major depression. But it also included lurid suggestions of sexual depravity. As Sean Wilentz relates, Ogle asserted that
the degenerate widower Van Buren had instructed groundskeepers to build for him, in back of the Executive Mansion, a large mound in the shape of a female breast, topped by a carefully landscaped nipple. Van Buren . . . was a depraved executive autocrat who oppressed the people by day and who, by night, violated the sanctity of the people's house with extravagant debaucheries -- joined, some whispered, by the disgusting Vice President Johnson and his Negro harem.

In order to fully appreciate the closing reference, you need some background on Vice President Richard Mentor Johnson (shown seated in the cartoon above). He was a Kentucky slaveholder who made no effort to disguise his liaisons with black women. Again, Sean Wilentz tells the story succinctly:
Johnson had two daughters, Imogene and Adeline, by his housekeeper, a mulatto ex-slave named Julia Chinn. After Chinn died in 1833, Johnson took up with another woman of partial African descent, and in Washington he accompanied his out-of-wedlock daughters (whom he had provided with excellent private educations) to public functions and festivities, sometimes in the company of their respective white husbands.

* * *

[After Johnson's election in 1836, there was] talk that he had entered into yet another illicit liaison with a mulatto woman, aged eighteen or nineteen, who was the sister of one of his previous consorts. (After a trip to Kentucky, Amos Kendall informed friends that Johnson was devoting "too much of his time to a young Delilah of about the complexion of Shakespears swarthy Othello.")

Harrison won the election, but Van Buren and the Democrats had the last laugh. Harrison died after only one month in office. Henry Clay and Tyler, now president, fell into heated disagreement, and Clay ultimately read Tyler out of the Whig party. The Democrats won the next election, although their candidate was not Van Buren -- but that's another story.


About a month ago, I attended a friend's son's bar mitzvah. Apparently, the latest trend is for the celebrant to ask the guests to make donations to a specified charitable cause rather than buy him a gift. This celebrant asked invitees to donate to a save Darfur organization.

After inspecting the organization's website, I gave the requested donation, on the theory that it would probably do no harm. But what really struck me was how utterly useless the organization appeared to be. From what I could tell, the organization's only idea was to raise "awareness" about how terrible things were happening in Darfur, and insist that someone do something. Unfortunately, it wasn't clear who that someone was, and it wasn't clear what it was that it or they should be doing. To the extent the website gingerly mentioned the possibility of peacekeeping forces or no-fly zones, the suggestion seemed to be that they would be undertaken by UN or other international organizations.

All of which got me thinking about Rwanda. I think it was Philip Gourevitch in his excellent and gut-wrenching book, We wish to inform you that tomorrow we will be killed with our families, who pointed out that, if the U.S. had used a single cruise missile or bomb to take out the Rwandan national radio station, that act would likely have saved hundreds of thousands of lives, because the mass murderers were using the radio station to direct the killing squads where to go.

So, too, in Darfur: everyone knows perfectly well that the Sudanese government is behind the Janjaweed killers. A surprise cruise missile attack or bombing sortie on the Sudanese government offices in Khartoum would reduce the mass murder in Darfur immediately. And yet the Save Darfur organizations, such as the one whose web site I viewed, cannot bring themselves to demand the one action that everyone knows would be the most efficacious.

Why? They will have to look into their own hearts, but my guess is the usual mix: hatred of Bush and of the US military make it impossible for them even to conceive of the use of force except, possibly, by corrupt international organizations that will never act.


Friday, July 06, 2007

The Wit and Wisdom of Cato the Elder I

Arguing against a law for the free distribution of corn:

"It is difficult, my fellow citizens, to argue with the belly, for it has no ears."

Wednesday, July 04, 2007

Liveblogging the Second Continental Congress

In the days leading up to the Fourth of July, Rick Moran at Right Wing Nuthouse has in past years liveblogged the Battle of Gettysburg. This year, he has been liveblogging the Second Continental Congress, beginning with July 2, 1776, the date on which the delegates approved Richard Henry Lee's resolution in favor of independence. My favorite part of that entry:
John Adams is all smiles – a rarity, that. Independence wasn’t his idea but it had no greater champion nor ardent supporter than the gentleman from Massachussetts. I overheard him dictating a letter to his wife:

“The Second Day of July 1776 will be the most memorable Epocha, in the History of America. . . . It ought to be solemnized with Pomp and Parade, with Shows, Games, Sports, Guns, Bells, Bonfires, and Illuminations from one End of this Continent to the other from this Time forward forever more.”

I suspect that may be true. I can hear a bells in the background ringing joyously. It appears that word has spread quickly that the United Colonies are now the United States of America.

In his entry for July 3, Rick reported that the delegates, discussing the draft Declaration of Independence, fought over the issue of slavery:
Great excitement! Mr. Ruttledge and Mr. Adams had a knock down, drag out shouting match over the slavery section I quoted above. Ruttledge feels personally insulted by the passage and threatens the unity of the Congress unless it is stricken from the declaration. Adams believes that we can’t ignore the issue of slavery. To do so makes us hypocrites in the eyes of the world.

What to do? Both men have a point. By condemning the slave trade, do you not also condemn those who buy the slaves? And how is it possible to claim our own country on the basis of freedom while keeping millions in bondage?

My own feeling is that the issue isn’t worth tearing ourselves apart. The slavery issue will probably solve itself if we leave it alone and let the states that allow it to deal with it in their own time. After all, I wouldn’t want some Georgia planter telling me how to live my life. I’m not about to tell him what he can do with what is, after all, his own property.

But Adams is adamant about keeping the passage in the declaration and Ruttledge is steaming mad. Keeping one ear on the proceedings, I see where even some northerners are siding with Ruttledge so it seems inevitable that the passage will be struck from the final draft.

Someone pointed out once that the fact that Jefferson was delegated the task of drafting the Declaration revealed that the delegates did not consider the job all that important -- otherwise a number of others, including John Adams, would have fought to claim the prize for themselves. They had no idea that the Declaration, rather than the vote, would come to symbolize and be celebrated as the moment in which America became free.

I am not a big Jefferson fan. And it's also true (as Rick suggests) that the numerous changes that the delegates made to Jefferson's initial draft were improvements. But even I have to admit that it was Jefferson who had the vision to transform an assignment that no one else wanted into a clarion call for freedom that has inspired millions of people for 231 years.

Sunday, July 01, 2007

John Quincy Adams Meets With President Monroe

J.L. Bell at Boston 1775 had a post that alerted me to the fact that the Massachusetts Historical Society has made the complete John Quincy Adams diaries available online. It's a wonderful resource that is, at the same time, completely maddening. The pages are digitized photos of the original diaries. Being able to see and read Adams's actual writing is awe inspiring. At the same time, the format means that the 14,000 pages (!) of diaries are not word searchable.

That's OK. The thing that has driven me crazy is the size of the images. The regular pages are too small to read, and the "pop up large images" are too large -- to read each line, you have to scroll across the page, then scroll back to pick up the next line. As a result, I tend to lose the lines. I tried printing out a page using the "printer friendly page" version, but that, too, is too small. The size of the text is reduced in order to accommodate annoying copyright and source information at the top and bottom of the page.

All this means that it's impossible for these old eyes to read more than de minimis amounts of the text without going blind.

Despite -- or because of -- these limitations, I decided to try to find a single specific entry: Adams's description of the cabinet meeting at which President Monroe asked the members of his cabinet for their opinions on whether the Missouri Compromise Bill was constitutional. I knew, from other sources, that the meeting took place on Friday March 3, 1820. The diaries are date searchable, so I put in the date and found the relevant entry in short order.

The description of the meeting begins at page 276 of Diary 31. I had expected it to be relatively short, if only because I assumed that Adams would not have had the time to go on at length. How wrong I was.

Here is the core of the entry. Since I've about gone blind, I will post the remainder after my eyes recover. In order to make the description more readable, I have added paragraph divisions; none exist in the original. I have also added some links to the names that appear, even though anyone who reads this will almost certainly know who the characters are. Here goes:
When I came this day to my office, I found there a Note requesting me to call at one O’Clock at the President’s house. It was then one, and I immediately went over. He expected that the two bills, for the admission of Maine, and to enable Missouri to make a constitution, would have been brought to him for signature, and he had questioned all the members of the Administration to ask their opinions in writing to be deposited in the Department of State, upon two questions. 1. Whether Congress had a Constitutional right to prohibit Slavery in a Territory? and 2. Whether the 8th Section of the Missouri Bill (which interdicts Slavery forever in the Territory North of 36 1/3 Latitude, was applicable only to the territorial state, or would extend to it after it should become a State.

As to the first question, it was unanimously agreed that Congress have the power to prohibit Slavery in the Territories, and yet neither, Crawford, Calhoun, nor Wirt could find any express power to that effect given in the Constitution, and Wirt declared himself very decidedly against the admission of any implied powers.

The progress of this discussion has so totally merged in passion all the reasoning faculties of the Slave holders, that these Gentlemen in the simplicity of their hearts had come to a conclusion in direction opposition to their premises, without being aware or conscious of inconsistency – They insisted upon it that the clause in the Constitution, which gives Congress power to dispose of, and make all needful rules and regulations respecting the territory and other property of the United States, had reference to it, only as land, and conferred no authority to make rules, binding upon its inhabitants; and Wirt added the notable Virginian objection, that Congress could make only needful rules and regulations – and that a prohibition of Slavery was not needful. Their argument, as Randolph said of it in the House covered the whole ground, and their compromise, measured by their own principles is a sacrifice of what they hold to be the Constitution.

I had no doubt of the right of Congress to interdict Slavery in the Territories and urged that the power contained in the term dispose of, included the authority to do every thing that could be done with it as mere property, and that the additional words authorizing needful rules and regulations respecting it, must have reference to persons connected with it, or could have no meaning at all. As to the force of the term needful, I observed it was relative, and must always be supposed to have reference to some end – needful to what end – needful in the Constitution of the United States to any of the ends for which that compact was formed. Those ends are declared in its preamble – to establish justice for example. What can be more needful to the establishment of Justice than the interdiction of Slavery where it does not exist.

As to the second question my opinion was the interdiction of slavery in the 8th Section of the Bill, forever, would apply and be binding upon the States, as well as upon the Territory; because by its interdiction in the Territory, the People when they come to form a Constitution would have no right to sanction Slavery – Crawford said that in the new States, which have been admitted into the Union upon the express condition that their Constitutions should consist with the perpetual interdiction of Slavery, it might be sanctioned by an ordinary act of their Legislatures – I said, that whatever a State Legislature might do in point of fact, they could not by any rightful exercise of power establish Slavery – The Declaration of Independence not only asserts the natural equality of all men, and their inalienable right to Liberty; but that the only just powers of government are derived from the consent of the governed. A power for one part of the people to make Slaves of the other can never be derived from consent, and is therefore not a just power.

Crawford said this was the opinion that had been attributed to Mr. King. I said it was undoubtedly the opinion of Mr. King; and it was mine. I did not want to make a public display of it, where it might excite irritation, but if called upon officially for it, I should not withhold it. But the opinion was not peculiar to Mr. King and me – it was an opinion universal in the States where there are no Slaves. It was the opinion of all those members of Congress who voted for the restriction upon Missouri, and of many of those who voted against it – As to the right of imposing the restriction upon a State, the President had signed a Bill with precisely such a restriction upon the State of Illinois – Why should the question be made now, which was not made then – Crawford said that was done in conformity to the compact of the Ordinance of 1787: and besides the restriction was a nullity, not binding upon the Legislatures of those States.

I did not reply to the assertion that a solemn compact, announced before heaven and earth in the ordinance of 1787, a compact laying the foundation of security to the most sacred rights of human nature, against the most odious of oppressions, a compact solemnly renewed by the act of Congress enabling the States of Ohio, Indiana and Illinois, to form State Governments, and again by the Acts for admitting those States into the Union, was a nullity, which the Legislatures of either of those States may at any time disregard and trample under foot. It was sickening to my Soul to hear the assertion; but to have discussed it there would have been useless, and only have kindled in the bosom of the Executive the same flame which has been raging in Congress; and in the Country – Its discussion was unnecessary to the decision of the questions proposed by the President – I therefore only said that the Ordinance of 1787 had been passed by the old Congress of the Confederation, without authority from the States, but had been tacitly confirmed by the adoption of the present Constitution, and the authority given to Congress in it to make needful rules and regulations for the territory – I added that in one of the numbers of the Federalist, there was an admission that the old Congress had passed the Ordinance without authority, under an impulse of necessity – and that it was used as an argument in favour of the enlarged powers granted to Congress in the Constitution.

Crawford said it could therefore have little or no weight as authority. I replied that it was not wanted as authority – That when the old Confederation was adopted the United States had no territory. Nor was there in the Act of Confederation, in which the powers of Congress under it were enumerated a word about territory. But there was a clause interdicting to Congress the exercise of any powers not expressly given them: I alluded to the origin of the Confederation with our Revolution – To the revolutionary powers exercised by Congress, before the Confederation was adopted – To the question whether the northwestern territory belonged to the United States or the separate States – To the delays occasioned by the question in the acceptance of the Confederation; and to the subsequent cessions of Territory by several States, to the Union, which gave occasion for the ordinance of 1787. To all which Crawford said nothing.

Wirt said that he perfectly agreed with me that there could be no rightful power to establish Slavery where it was res nova – But he thought it would not be the force of the Act of Congress that would lead to this result – The principle itself being correct, though Congress might have no power to prescribe it to a sovereign State. To this my reply was, that the power of establishing Slavery, not being a sovereign power, but a wrongful and despotic power, Congress had a right to say that no State undertaking to establish it de novo should be admitted into the Union; and that a State which should undertake to establish it would put herself out of the pale of the Union, and forfeit all the rights and privileges of the connection.

The President said that it was impossible to exclude the principle of implied powers, being granted to Congress by the Constitution. The Powers of Sovereignty were distributed between the general and the State governments – Extensive powers were given in general terms; all detailed and incidental powers were implied in the general grant. Some years ago, Congress had appropriated a sum of money to the relief of the inhabitants of Caraccas, who had suffered by an earthquake. There was no express grant of authority to apply the public money to such a purpose – It was by an implied power – The material question was only when the power supposed to be implied came in conflict with rights reserved to the State Governments – He inclined also to think with me, that the Rules and Regulations, which Congress were authorized to make for the territories, must be understood as extending to their inhabitants – And he resumed to the history of the Northwestern Territory. The cessions by the several States to the Union, and the controversies concerning this subject during our revolutionary War.

He said he wished the written opinion of the members of the Cabinet, without discussion, in terms as short as it could be expressed, and merely that it might be deposited in the Department of State – I told him that I should prefer a dispensation from answering the second question; especially as I should be alone here in the opinion which I entertained; for Mr. Thompson the Secretary of the Navy cautiously avoided giving any opinion, upon the question of natural right, but assented to the Slave sided doctrine that the eighth Section of the Bill, word forever, and all, applied only to the time and condition of the territorial government – I said therefore that if required to give my opinion upon the second question standing alone, it would be necessary for me to assign the reasons upon which I entertained it – Crawford saw no necessity for any reasoning about it, but had no objection to my assigning my reasons.

Calhoun thought it exceedingly desirable that no such argument should be drawn up and deposited – He therefore suggested to the President, the idea of changing the terms of the second question, so that it should be, whether the 8th Section of the Bill was consistent with the Constitution? which the other members of the administration might answer affirmatively, assigning their reason, because they considered it applicable only to the territorial States; while I could answer it, also affirmatively, without annexing any qualification – To this the President readily assented, and I as readily agreed – The questions are to be framed accordingly.
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