This is the only perfectly just measure of political influence;but it is a measure which cannot be applied in practice.We receive population as the best practicable substitute for it;and as all people,whatever be their private and peculiar conditions and relations,are presumed to contribute their share to the stock of general wealth,intelligence and virtue,they are all entitled to their respective shares of influence in the measures of government.The slave-holding States,therefore,had a right to demand that all their slaves should be represented;they yielded too much in agreeing that only three-fifths of them should possess that right.I cannot doubt that this would have been conceded by the convention,had the principle,that representatives and direct taxes should be apportioned according to the same ratio,been then adopted into the Constitution.It would have been perceived that,while the representation of the southern States would thus have been increased,their share of the public taxes would have been increased in the same proportion;and thus they would have stood,in all respects,upon the same footing with the other States.The northern States would have said to them,"Count your people;it is of no consequence to us what is their condition at home;they are laborers,and therefore they contribute the mine,amount of taxable subjects,whether black or white,bond or free.We therefore recognize them as people,and give them representation as such.All that we require is,that when we come to lay direct taxes,they shall be regarded as people still,and you shall contribute for them precisely as we contribute for our people."This is the plain justice of the case;and this alone would be consistent with the great principles which ought to regulate the subject.It is a result which is no longer attainable,and the South will,as they ought to do,acquiesce in the arrangement as it now stands.But they have reason to complain that great authors,in elaborate works designed to form the opinions of rising generations,should so treat the subject as to create an impression that the southern States are enjoying advantages under our Constitution to which they are not fairly entitled,and which they owe only to the liberality of the other States;for the South feels that these supposed advantages are,in fact,sacrifices,which she has made only to a spirit of conciliation and harmony,and which neither justice nor sound principle would have exacted of her.
Regarding this work of Judge Story,as a whole,it is impossible not to be struck with the laborious industry which he has displayed in the collection and preparation of his materials.He does not often indulge himself in speculations upon the general principles of government,but confines himself,with great strictness,to the particular form before him.Considering him as a mere lawyer,his work does honor to his learning and research,and will form a very useful addition to our law libraries.
But it is not in this light only that we are to view it.The author is a politician,as well as a lawyer,and has taken unusual pains to justify and recommend him own peculiar opinions.This he has done,often at the expense of candor and fairness,and,almost invariably,at the expense of historical truth.We may well doubt,therefore,whether his book will produce more evil than good,to the country;since the false views which it presents,of the nature and character of our government,are calculated to exert an influence over the public mind,too seriously mischievous to be compensated by any new lights which it sheds upon other parts of our Constitution.Indeed,it is little less than a labored panegyric upon that instrument.Having made it,by forced constructions,and strange misapprehensions of history,to conform to his own beau ideal of a perfect government,he can discern,in it nothing that is deficient,nothing that is superfluous.
And it is his particular pleasure to arm it with strong powers,and surround it with imposing splendors.In his examination of the legislative department,he has displayed an extraordinary liberality of concession in this respect.
There is not a single important power ever exercised or claimed for Congress which he does not vindicate and maintain.The long-contested powers to protect manufactures,to construct roads,with an endless list of similar objects to which the public money may be applied,present no serious difficulty to his mind.An examination of these several subjects,in detail,would swell this review beyond its proper limits,and is rendered unnecessary by the great principles which it has been my object to establish.I allude to them here,only as illustrating the general character of this book,and as showing the dangerous tendency of its political principles.It is,indeed,a strong argument in favor of federal power;and when we have said this,we have given it the character which the author will most proudly recognize.And it is not for the legislature alone,that these unbounded powers are claimed;the other departments come in for a full share of his favor.Even when he is forced to condemn,he does it with a censure so faint,and so softened and palliated,as to amount to positive praise.
