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WITH AN INTRODUCTION AND COPIOUS CRITICAL AND EXPLANATORY NOTES. by C. CHAUNCEY BURR.
NEW YORK: VAN EVRIE, HORTON & CO., No. 162 NASSAU STREET. 1868.
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Entered according to Act of Congress, in the year 1868 by VAN EVRIE, HORTON & Co., In the Clerk's office of the District Court of the United States, for the Southern District of New York
The author of this volume was considered one of the ablest legal minds in the United States. He studied law under William Wirt, the eminent author of the Life of Patrick Henry, and his practiced profession with great success from 1810 to 1824. After an interval of retirement, he held a high judicial position as Judge of the General Court of Virginia, from 1826 to 1841; at which time he entered Mr. Tyler's Cabinet as Secretary of the Navy. On Mr. Webster's retirement, in the spring of 1843, Judge Upshur succeeded him as Secretary of State. On the 28th of February 1844, the explosion of the great gun ("Peacemaker") on board the steamer Princeton killed this eminent jurist and statesman. His reputation in private life was as spotless as his public fame was exalted and unrivaled. This review of Judge Story's Commentaries on the Constitution of the United States is perhaps the ablest analysis of the nature and character of the Federal Government that has ever been published. It has remained unanswered. Indeed, we are not aware that any attempt has been made to invalidate the soundness of its reasoning. As a law writer, Judge Story has been regarded as one of the ablest of his school, which was that of the straightest type of "Federalists" of the elder Adams's party. His commentaries are a good deal marred with the peculiar partisan doctrines of that school of politicians; indeed, they may be looked upon as a plea for the severe political principles which ruled the administration of President John Adams. The Alien and Sedition Laws, which have long since passed into a by-word of reproach, will still find abundant support in Judge Story's Commentaries. He perpetually insisted on construing the Constitution from the standpoint of that small and defeated party in the Federal Convention which wanted to form a government on the model of the English monarchy in everything but the name. This party was powerful in respectability and talents, but weak or few in numbers — and after it was so signally defeated in the Constitutional Convention, it still held on to its monarchical principles, and sought to invest the new government with kingly powers, notwithstanding the Constitution had
under direction of divine authority." At a dinner given by Mr. such . 1800. the historian of the time. and that the people ought to bow in tame submission to its whim and caprice." Writing of Mr. and was by them. your virtue. shows to what lengths that party had dragged the public mind in the direction of monarchy: "We. any libel against the Government of the United States. the subscribers. says: "They bestowed unbounded panegyrics upon Alexander Hamilton. The following letter. In a letter of U. with all its supposed defects. Senator John Langdon. he shall be punished by a fine not exceeding two thousand dollars. was denounced as the enemy of his country. the Chief Magistrate and supreme ruler over the United States. Rose. Adams certainly expressed himself that he hoped. Taylor. had made him believe their fascination to be a necessary ingredient in government. Adams. and other gentlemen. your wisdom and your prudence. They thought the administration and the government ought to be confounded and identified. Jefferson adds: "Hamilton was not only a monarchist. or against the President. at the risk of our lives and fortunes. Adams said: 'Purge the British Constitution of its corruption. or expected to see the day when Mr. declaring that "if any person should write or publish. Jefferson says: "Mr. in the State of Massachusetts. He was taken up by the monarchical Federalists in his absence. speaking of the principles of the Federalists. and the government the administration. when "the Constitution of the United States" was given as a toast. and it would be the most perfect Constitution ever devised by the wit of man. "after dinner. or cause to be published. and a friend of the Adams party. His book on the American Constitution had made known his political bias. S. he says: "Mr. and give to its popular branch equality of representation. and it would become then an impracticable government. inhabitants and citizens of Boston. We beg leave also to express the high and elevated opinion we entertain of your talents. left the table of Mr. you have pleased to adopt." A great many editors. our fullest approbation of all the measures. deeply impressed with the alarming situation of our country. Mr. The glare of royalty and nobility. John Wood. Hollines.' Hamilton replied: 'Purge it of its corruption. and his friend. that the administration was the government. external and internal. a Senator from Pennsylvania. made to believe that the general disposition of our citizens was favorable to monarchy. Even to ridicule the President was pronounced by the corrupt partisan judges a violation of the law. Adams. As it stands at present. it is the most perfect government that ever existed. beg leave to express to you. Men were beaten almost to death for neglecting to pull off their hats when the President was passing. and every man who did not instantly prostrate himself before the ensigns of Federal royalty.'" Mr. or either House of Congress. but for a monarchy bottomed on corruption." The Federalists having a majority in Congress. during his mission in England. and by imprisonment not exceeding two years. addressed to President John Adams by the merchants of Boston. Mr. of Philadelphia. and our fixed resolution to support. because this gentleman acted the part of Prime Minister to the President. Adams had originally been a Republican. of New Hampshire to Samuel Ringgold. and convinced of the necessity of uniting with firmness at this interesting crisis." Mr. and give to its popular branch equality of representation. he declares that. Jefferson. when he was a member of Washington's Cabinet. would be convinced that the people of America would never be happy without a hereditary Chief Magistrate and Senate or at least for life.been constructed upon principles entirely opposite to its doctrine. of the date of October 10th. Giles. passed an act to continue in force during the administration of Mr. were imprisoned under this act.
but for the sole purpose of protecting the rights and sovereignty of "the several States. the Convention that framed our Constitution. The Federal Government is simply an agency. sir. Too much provision cannot be made against consolidation. and local interests of the people. but for the happiness. Those of the Federal Government are only derived and secondary. commissioned by the "several States" for their own convenience and safety. which no State imagined it was surrendering when it. They only delegated them. The great vice of the Federalists consisted in desiring to clothe the Federal Government with almost monarchical powers. with an eloquence more powerful than that which shook the throne of Macedon." Any one can see that men who could address the President after this fashion. Though defeated. The powers which they delegated to the Federal Government were few. in. and against which this article is our best security. nor relieve my distress. the General Government. Not for the kingly grandeur and power of government. and they were delegated. had a great deal less respect for the restraints and limitations of a written Constitution. by giving the Constitution a construction utterly antagonistic to the intentions of the Convention which framed and of the States which adopted it. In the Convention of Virginia. than for the will and force of individual power. that it was driven from power by the election of Mr. as it cannot know my wants." The Federal Government was formed by the States for their own benefit. This feeling was most happily expressed by Chief Justice Ellsworth. of Connecticut. Liberty. Can they. he demonstrated that the battles of the Revolution were fought. in the following words: "I want domestic happiness as well as general security. The State Governments represent the wishes and feelings. Fisher Ames said: "A consolidation of the States would subvert the new Constitution. Patrick Henry said: "Liberty. not to make "a great and mighty empire. But the tyrannical excesses of that party soon brought it into such odium. the greatest of all earthly blessings — give us that precious jewel." The States surrendered no powers to the Federal Government. is the primary object. They are the ." It was for liberty — for the liberty of the people of the "several States" that the Federal Government was established. Those which they reserved embraced their original and inalienable sovereignty. safety and liberty of "the people of the several States. That was the drift of a certain portion of public opinion in America at that time." Nothing could possibly be stronger than the determination pervading the mind of the Federal Convention to sacrifice no iota of the essential sovereignty of the States in the formation of the general Union." In the Convention of Massachusetts. Jefferson to the Presidency. whereas the States had carefully and resolutely reserved the great mass of political power to themselves." but "for liberty. gratify my wishes? My happiness depends as much on the existence of my State Government as a new-born infant depends upon its mother for nourishment. Madison dwelt with great force upon the fact that "a delegated is not a surrendered power. The powers of the States are original." And. Mr. adopted the Constitution. My State is only as one out of thirteen. and you may take away everything else. A General Government will never grant me this. and were general in their character. its partisans never ceased to labor to drag the Constitution away from its Democratic foundations. not for the purpose of aggrandizing the Federal Government.measures as you may determine upon to be necessary for promoting and securing the honor and happiness of America.
No one can regret this circumstance. I know that the actual practice of the Federal Government for many years past. It may well excite surprise. and one so well calculated to influence public opinion. our own Notes are distinguished from those of the author by our initials — " C. we hope. more than I do. There is no vital point which it does not discuss and settle upon the basis of invulnerable truth. This review of Judge Upshur. and his Commentaries upon the Constitution were written in the interests of the Consolidationists. We are confident that no book has ever appeared in this country which so thoroughly meets the demands of the present hour. howsoever favorable his opinion of this essay may be will not be more sensible of its imperfections than I am. however. will be found useful to the unprofessional reader. that the reader. The book to which the following pages relate has been for several years before the public. I have no disposition to detract from its merits as a valuable compendium of historical facts. and the strong tendencies of public opinion in favor of federal power. who have ever insisted on giving that instrument an interpretation in harmony with their wishes and ideas. that so elaborate a work as this of Judge Story. The Notes which we have added." PREFACE BY THE AUTHOR. so far as they relate to the true nature and character of our Federal Government. except from the very few who still cherish the principles which I have endeavored to reestablish. and recommended in the strongest terms to public favor. should have remained so long unnoticed by those who do not concur in the author's views. with a view to its publication in one of our periodical reviews. the Democratic statesman or orator is armed at every point against the sophistries of the foes of State sovereignty and self-government. The following essay was prepared about three years ago. they will afford a shelter against the abuse of power. they will protract the period of our liberties. or as presenting just views of the Constitution in many respects. which it is unnecessary to mention. I offer no apology for the manner in which that task has been performed. My attention has been directed to its political principles alone. for I would willingly have devolved upon abler hands the task which I now have undertaken.safeguard and ornament of the Constitution. and my sole purpose has been to inquire into the correctness of those principles. It will ever stand as a text-book of the true theory of our government. forbid me to hope for a favorable reception. It is enough for me to say. C. prevented this from . They will show that the authors reasoning is confirmed by our Constitutional history and by the early decisions of the Supreme Court. B. Circumstances. With this book in his hand. does not leave a single point of the Federalistic heresy unanswered. In every instance. It has been reviewed by some of the principal periodicals of the country. But Judge Story belonged to another school of politicians. and will be the natural avengers of our violated rights." Such were the views and sentiments of the men who framed and who adopted the Federal Constitution.
quite as full as any such work needs to be. and as it has been prepared with elaborate care in other respects. My conclusions are drawn from the authentic information of history. consistent with a due regard to clearness. even if they be not wholly forgotten. we may reasonably suppose. as have. as it professes to be. perhaps. It came within the range of Judge Story's duties. and all the leading reasons upon which his own opinions have been based. My attention has been again called to it within a few weeks past. I do not claim the merit of originality. The politician and the jurist may consult it. and a proper reference to authorities. who have not yet lost all interest in the subject. and from a train of reasoning. the very first lessons to the student of constitutional law. and published in a separate volume. as Dane Professor of Law in Harvard University. to the true principles of our constitution of government. It is. indeed. I have endeavored to compress my matter within as small a compass as possible." but as it contains all the important historical facts. to expound and illustrate the Constitution of the United States. however. which will occur to every mind. A work presenting a proper analysis and correct views of the Constitution of the United States has long been a desideratum with the public. except. in the opinion of the author himself. under the hope that it may not be without its influence in directing the attention of those. CHAPTER I. the "leading doctrines" of the original. with a sincere desire after truth. "a full analysis and exposition of the constitution of government of the United States and presents. on the facts which history discloses. for the . THE TRUE NATURE AND CHARACTER OF OUR FEDERAL GOVERNMENT. "so far as they are necessary to a just understanding of the actual provisions of the Constitution. Having proposed to myself but a single object. with a certainty of finding all the prominent topics of the subject fully discussed. without impeaching his modesty. the great principles upon which political parties in our country were once divided. and I am now induced to give it to the public. Although the work is given to the public as an abridgment. such commentaries. It is true that the last fifteen years have not been unfruitful in commentaries upon that instrument. that he expected it to be received as a complete work. I do not offer this essay as a commentary on the Federal Constitution. My object will be answered.being done. if even the few by whom these pages will probably be read shall be induced to re-examine. and the work was laid aside and forgotten. but which there is much reason to fear are no longer respected. it is nevertheless. THE CHARACTER OF JUDGE STORY'S COMMENTARIES ON THE CONSTITUTION." The author professes to have compiled it "for the use of colleges and high schools. for any purpose. where authorities are relied on. His lectures upon that subject have been abridged by himself.
except by adding like authority to the weight of reason and argument. The authority of great names is of such imposing weight. the Federalist. qualified them. their commanding talents. it must be admitted that the Federalist is defective in some important particulars. which has yet appeared. and two of them were members of the convention which formed the Constitution. Most of them have served only to throw ridicule upon the subject which they professed to illustrate. not then anticipated. as full and safe authority in all cases. however. does not always command our entire confidence. by subsequent events. which were considered at the time as comparatively unimportant. hold the first rank. The subject demands our attention now as strongly as it did before the Federalist was written. in the actual practice of the government. at the foundation of that instrument. which no politician of that day could either have foreseen or imagined. which lie. and who possess all the requisite qualifications for the task. and may enlighten our judgments in most others. Contemporary expositions of the Constitution. for the task which they undertook. as it is natural they should be. and the Commentaries of Chief Justice Kent. for that reason. which is to be learned only from its practical operation. It is much to be regretted that some one. to be pregnant with the greatest difficulties. comes to us as a mere argument in support of a favorite measure. and its preponderance is not easily overcome. Added to this. New questions have arisen. and to the general government. Both of these works are. in the opposing scale. wholly unforeseen. their great object was to recommend the Constitution to the people. Hence the Federalist cannot be relied on. could only be conjectured. matter of just surprise. should not have thought it necessary to vindicate his own peculiar tenets. This is not true of the great principles of civil and political liberty. cannot be regarded as safe guides. and hence their work. is decidedly the best. in a peculiar degree. the Constitution was and its true character. It is. Nevertheless. in immediate and total oblivion. although it contains a very full and philosophical analysis of the subject. Much has been developed. A few have appeared. and their experience in great public affairs. that their views of the Constitution have been so often justified in the course of its practical operation. The first commentary upon the Constitution. Besides. at a time when it was very uncertain whether they would adopt it or not. The writers of that book were actors in all the interesting scenes of the period. however. their extensive information. among the many who differ from them in their views of the Constitution. their joint authority can scarcely fail to exert a strong influence upon public opinion. and. Among these. The Constitution is much better understood at this day than at the time of its adoption. indeed. of a much higher order. Still.most part met a deserved fate. and research. and presenting just claims to public attention. or so plain as not to be misunderstood. strongly tinctured with the political opinions of their respective authors. the work before us. and as there is a perfect concurrence between them in this respect. but which have been shown. that mere reason and argument can rarely counterpoise it in the public mind. have sprung from new events in the relation of the States to one another. in a work equally elaborate.1 . I hope it is not yet too late for this suggestion to have its effect upon those to whom it is addressed. and deficient in many more. learning. and affording the strongest proof of the profound wisdom and far-seeing sagacity of the authors of that work. therefore. and to exert the most important influence upon the whole character of the government. although they should be received as authority in some cases. and difficulties and embarrassments. but it is emphatically true of some of its provisions. and bearing the stamp of talent. by the expounder of that instrument at this day.
His duty. with the reasons on which they were respectively founded. and the rise. by ambition. it is absolutely necessary to understand the situation of the States before it was adopted. if he should hazard his well-earned reputation as a jurist. progress. into the mere history of events which distinguished that extraordinary enterprise. may be added a reputation for laborious research. The author. these claims to public attention and respect. during the Revolution. therefore. at the same time. and for calm and temperate thinking. it presents them in the natural order of investigation. must contemplate them in another and a higher character. He has also been an attentive observer of political events. and an attachment to. The second will embrace the constitutional history of the States. To all. and has acquired a character. And.It is not surprising. It did not fall within the plan of our author to enquire very extensively. The first part relates to a subject of the greatest interest to every American. within the whole range of history. and his long service in that capacity has probably brought under his review every provision of that instrument in regard to which any difference of opinion has prevailed. A deep and solemn feeling of religion. It embraces every topic necessary to a full understanding of the subject. It displays a perfect acquaintance with the true nature of the subject. their deeds belong to the province of the historian alone. or very minutely. and it is. and fall of the Confederation. may borrow from the mere authority of the distinguished name under which they are advanced. decline. the principles of civil liberty. it would be indeed wonderful. and by the joint deliberations of the other judges of the court. far in advance of the age in which they lived. and promises every result which the reader can desire. as may best enable the reader to estimate for himself. while. cannot fail to exert a strong influence upon public opinion. So far as the first settlers may be regarded as actuated by avarice. it can scarcely fail to contain many valuable truths. it is of the highest importance to guard the public mind against the influence which its errors. We. and anterevolutionary jurisprudence of the Colonies. has yet a political character. A work on the Constitution of the United States. an event more important. emanating from such a source. as a Judge of the Supreme Court. and an understanding of. and the subsequent operations of the government. has demanded of him frequent investigations of the nicest questions of constitutional law. which ensures respect to whatever he may publish under his own name. the true value of each. the objections by which they were respectively assailed. upon subjects so grave and important. and much information which will be found useful to all classes of readers. and such illustrations drawn from contemporaneous documents. Judge Story fills a high station in the judiciary of the United States. Whatever may be the cast of its political opinions. or by any other of the usual motives of the adventurer. In order to a correct understanding of the Constitution. constitutional history. however. "The first will embrace a sketch of the charters. Assisted as he has been by the arguments of the ablest counsel. upon any hasty or unweighed opinion. suggested to most of them the idea of . acting upon this idea. that the work now under consideration should have been hailed with pleasure and received with every favorable disposition." This plan is at once comprehensive and analytical. than the settlement of the American Colonies. There is not. and well worthy the study of philosophical enquirers. The plan of the work before us is very judicious. peculiarly important that its real character should be understood. therefore. and although by no means obtrusive in politics. and a full exposition of all its provisions. if errors they be. distributes his work into three great divisions. The third will embrace the history of the rise and adoption of the Constitution. with reference to its effects upon the world at large. scarcely less distinguished than his character as a jurist. all over the world. for talents and learning. so far as its political opinions are concerned.
have not been understood by all men alike. and would have added much to its interest with the general reader. He has chosen. We should derive from such a review much light in the interpretation of those parts of our systems as to which we have no precise rules in the language of our constitutions of government. they were not wholly alien to each other. even within those limits. Yet. it would be a work of very great interest. It is. he has brought together a variety of historical facts of great interest. and for presenting the result in an analytical and philosophical form. contains much to enable us to understand fully the relation which they bore to one another and to the mother country. we shall be greatly aided in forming a correct opinion as to the true character of that instrument. and by tracing the colonies from their first establishment as such. It appears to be a favorite object of Judge Story to impress upon the mind of the reader. "one people. through the various stages of their progress up to the adoption of the Federal Constitution. Although not strictly required by the plan of his work. To this spirit we are indebted for all that is free and liberal in our present political systems. to confine himself within much narrower limits. It is to be regretted that Judge Story did not take this view of the subject. that we should ascertain the precise political condition of the several colonies prior to the Revolution. The brief sketch which he has given of the settlement of the several colonies. at the very commencement of his work. depend upon a denial of that separate existence. and to some extent which he has not defined.seeking a new home and founding new institutions in the western world. although well authenticated and comparatively recent. which he has not explained. and his habits and the character of his mind fitted him well for such an investigation. well calculated to make a lasting impression on the memory. His sources of historical information were ample. as to some objects. it was. This is the true starting point in the investigation of those vexed questions of constitutional law which have so long divided political parties in the United States. and separate sovereignty and independence." This is not only plainly inferable from the general scope of the book. CHAPTER II. altogether consistent with it. Many of the powers which have been claimed for the Federal Government. THE NON-RELATION OF THE COLONIES TO EACH OTHER — THEY WERE NOT ONE PEOPLE. upon which alone all parties must rely. by the political party to which he belongs. . the idea that the people of the several colonies were. and yet the historical facts. Their origin would probably be discovered at a period much more remote than is generally supposed. but is expressly asserted in the following passage "But although the colonies were independent of each other in respect to their domestic concerns. which the opposing party has uniformly claimed for the States. and has presented them in a condensed form. in the execution of the first part of his plan. therefore. however. It would seem almost impossible that any two opinions could exist upon the subject. and of the charters from which they derived their rights and powers as separate governments. On the contrary. and altogether worthy of the political historian. to trace the great principles of our institutions back to their sources. nevertheless. This will enable us to determine how far Judge Story has done justice to his subject. highly important to the correct settlement of this controversy. Our author was well aware of the importance of settling this question at the threshold of his work.
and not the result of the relation between the colonies themselves. one people. if he pleased. if it had been otherwise. was regulated by the general laws of the British empire. The right to regulate commercial intercourse among her colonies belongs. the right of that . and as the colonies were not. Justice to him requires that we should suppose this. was generally — nay. of course.'" In this passage the author takes his ground distinctly and boldly. it is not permitted that the soil of her territory should belong to any from whom she cannot demand all the duties of allegiance. it was fully yielded. for. They were in a strict sense fellow-subjects and in a variety of respects one people.they were fellow-subjects. The historical facts stated by both of these gentlemen are truly stated." for which the colonies were. and owed allegiance to him. is in consequence of his allegiance. Britain. wherever he may be found. Every colonist had a right to inhabit. by all those of New England." The same may be said of Mr. in any other colony. the correspondent right to own and inherit the soil attaches. and arrives at the conclusion. represented in Parliament. has a right to reside anywhere within the British realm. and for many purposes one people. but did not discern quite so clearly by what process of reasoning he was to accomplish it. to wit. and as a British subject he was capable of inheriting lands by descent in every other colony. as our author himself informs us. Indeed. to the parent country." except those which he has enumerated. too. Judge Story himself informs us that it belonged to him "as a British subject. The remarks of Mr. and from their local situation could not be. unless she relinquishes it by some act of her own. The first idea suggested by the perusal of it is. The commercial intercourse of the colonies. As to the right of the colonist to inherit lands by descent in any other colony than his own. whether born in England proper or in a colony. he would scarcely have failed to support his opinion by pointing out some one of the "many purposes. except by his own consent. although that right was resisted for a time by some of the American colonies. that the people of the several colonies were. It was the right of every British subject to be exempt from taxation. "one people. but it is surprising that it did not occur to such cool reasoners. it would be fair to suppose that he did not design to extend the idea of a unity among the people of the colonies beyond the several particulars which he has enumerated. that he discerned very clearly the necessity of establishing his position. "in a variety of respects. the patriots did not assert that only the same affinity and social connection subsisted between the people of the colonies. but this was upon a wholly different principle. Every British subject. and Spain. It is true. he does not say and of course it is fair to presume that he meant to rest the justness of his conclusion upon them alone. that every one of them is the result of the relation between the colonies and the mother country. and could not be restrained or obstructed by colonial legislation. wherever it exists. Chief Justice Jay are equally just and striking: "All the people of this country were then subjects of the King of Great Britain. On the contrary. Such is the right of every Englishman. This allegiance is the same in all the colonies as it is in England proper and. only that affinity and social connection which results from the mere circumstance of being governed by the same prince. If the passage stood alone. the right to tax the colonies was denied. and this by the force of British laws. in most matters of legislation which concerned the colonies. When the Revolution commenced. universally — admitted up to the very eve of the Revolution. He also has specified several particulars in which he supposed this unity to exist. and no such act is shown in the present case. while Roman provinces. indeed. By the policy of the British constitution and laws. in his view of them. which subsisted between the people of Gaul. Chief Justice Jay." In what respect they were "one. the supremacy of Parliament. and I am not informed that it was denied by any other. and all the civil authority then existing or exercised here flowed from the head of the British empire." That right.
Jay. or some peculiarity in their condition. which assembled at New York. over every other colony of the empire. and it is precisely the same in all cases. and to the same extent. Even admitting. in point of fact. and Spain might not have been "one people. In like manner. and the Canadas are. as parts of the same empire. Chief Justice Jay) why the people of Gaul. that is owing from his subjects born within the realm. Any two countries may be "one people. upon a fundamental principle of English liberty. If a common allegiance to a common sovereign. they must be the necessary result of their political condition. the facts relied on by Mr. notwithstanding "the patriots" did not say so. it is equally true of any two or more geographical sections of England proper." while Roman provinces." And so far as the rights of the mother country are concerned. the . and not "one people.body to tax them was denied. Whoever. the right of every colonist to inhabit and inherit lands in every colony. Did this make the people of all the colonies "one people?" If so. prove a unity between all the colonies and the mother country. indeed. may have been derived from positive compact and agreement among the colonies themselves. "one people" at this day. Britain." or "a nation de facto. in October. for every one of the reasons assigned applies as strictly to this case as to that of the colonies. and not from their common relation to the parent country. they existed in the same form. but I am at a loss to perceive how they prove. that they would. is bound to show something in their charters. The Congress of the nine colonies. and owed allegiance to him" and that "all the civil authority then existing or exercised here flowed from the head of the British empire. and a common subordination to his jurisdiction." are but the usual incidents of colonial dependence. But the right of the mother country to regulate commerce among her colonies is of a different character. and all due subordination to that august body. and it never was denied to England by her American colonies. and are by no means peculiar to the case he was considering." if they can be made so by the facts that their people are "subjects of the King of Great Britain. For aught that he has said to the contrary. it does not follow that the conclusion is correctly drawn in the present instance. that "all people of this country were then subjects of the King of Great Britain. to exempt them from the general rule. warrant the conclusion which the author has drawn from them." it is not perceived (with all deference to Mr. and show that these. and owe allegiance to him. the people of Jamaica. so long as a hope of reconciliation remained to them. the British East India possessions. that there was any sort of unity among the people of the several colonies. They do. taken altogether. The general relation between the colonies and the parent country is as well settled and understood as any other. under any state of circumstances. 1765. then. distinct from their common connection with the mother country. are sufficient to make the people of different countries "one people." and that "all the civil authority exercised therein flows from the head of the British empire. therefore. whether his own or not. are in the strictest sense of the terms. flow from the relation of the colonies to one another. that two or more parts or subdivisions of the same empire necessarily constitute "one people." If this be true of the colonies. If they authorize his conclusion. declare that the colonists "owe the same allegiance to the Crown of Great Britain. except where special consent and agreement may vary it. "one people". and this presupposes that they were distinct and separate. it must be because they flowed from something in the relation betwixt the colonies themselves. Judge Story was too well acquainted with the state of the facts to make any such attempt in the present case." It is to be regretted that the author has not given us his own views of the sources from which these several rights and powers were derived. for the very same reason. would prove that any peculiar unity existed between the American colonies. Nor is it enough that these rights and powers should.
unsupported by argument. It is not his habit to dismiss grave matters with such light examination. they are bound alike." "That the colonists are entitled to all the inherent rights and liberties of his [the King's] natural born subjects within the Kingdom of Great Britain. The subject demands of us the still farther proof that his opinion is. All doubts upon this subject will be removed in the progress of this examination. and. that the Constitution of the United States is a government of "the people of the United States. of the state of political opinions in this country. and wholly indefinite in extent and bearing. of the inhabitants of different countries." We have here an all-sufficient foundation of the right of the Crown to regulate commerce among the colonies. Indeed. indeed. His construction of every contested federal power depends mainly upon this distinction. and is wholly out of place. nor does it consist with the character of his mind to be satisfied with reasoning which bears even a doubtful relation to his subject. and dismissed with so little effort to sustain it by argument. one would be tempted to think. and not a federative system. or. One so well informed as Judge Story. erroneous. Why. to be so summarily disposed of. and of the right of the colonists to inhabit and to inherit land in each and all the colonies. then. we do not mean merely a number of persons. with simply proving that Judge Story has assigned no sufficient reason for the opinion he has advanced. requiring no examination. and that it cannot be sustained by any other reasons. that he himself did not attach to it any particular importance.Parliament of Great Britain. may prescribe. that a proposition so necessary to the principal design of the work." as contradistinguished from the people of the several States. spring from a different source from that from which he is compelled to derive them. The facts. and hence the necessity of establishing a oneness among the people of the several colonies. in other words. The great effort of Judge Story. . could scarcely have supposed that it would be received as an admitted truth. We mean by it a political corporation. upon which Judge Story's reasoning is founded. prior to the Revolution. who are liable to common political duties. therefore. that it is a consolidated. It enters too deeply into grave questions of Constitutional law. unsustained by any reference to historical facts. and those of contiguous countries may be. with the subjects born in England. in fact." in a political sense. It may well excite our surprise. it is of no value in this work. nor does the question depend on geographical relations. So far as Judge Story's argument is concerned. who possess common political interests. Neither is it sufficient that. as we know they in fact are. is to establish the doctrine. and who can exert no sovereign power except in the name of the whole. in some particulars. in order to support his conclusion. some thing more is necessary than that they should owe a common allegiance to a common sovereign. different nations. apart from its bearing on the Constitution of the United States. throughout the entire work. Neither can it be supposed that he would be willing to rely on the simple ipse dixit of Chief Justice Jay. in these respects. therefore. the subject might be permitted to rest here. by laws which that sovereign. who owe to one another reciprocal obligations. from the apparent carelessness and indifference with which the argument is urged. and do not owe any allegiance which is not common. They were nothing more than the ordinary rights and liabilities of every British subject. was this passage written? As mere history. should be stated with so little precision." as here used. In order to constitute "one people. the most that the colonies ever contended for was an equality. The inhabitants of different islands may be one people. By the term "people. the members of which owe a common allegiance to a common sovereignty. We should not be content. who are bound by no laws except such as that sovereignty may prescribe.
"one people. but this allegiance was exclusive. and were not bound by its laws. indeed. in every respect. to its own government. they could not owe the duties of citizenship to all of them alike. They stood upon the same footing. for any purpose whatever. The people of Pennsylvania could not be equally bound by the laws of all three governments. long afterwards. separate and distinct in the changes and modifications of their governments." Tested by this definition. and all who lived within those limits were "one people. Thus they were separate and distinct in their creation. yet. and each under an authority from the Crown. they were recognized as separate and distinct. some proprietary. to the King as the head thereof. no common military power. were the followers of William Penn "one" with the people of Plymouth and Virginia? If so. they had no right to vote in its elections. as the head of their own local government. In point of fact. The charter of any one of them might have been destroyed. . in regard to them. as the head of each colonial government. from time to time.Anything short of this. which were made from time to time. Although they were all. and was not a common allegiance of the people of all the colonies. were the people of that colony "one" with the people of Virginia? When. the people of the American colonies were. in each colony. would be an imperfect definition of that political corporation which we call a "people. Each derived its form of government from the particular instrument establishing it. There was no prescribed form by which the colonies could act together. The people of one colony owed no allegiance to the government of any other colony. then. The people of Virginia owed allegiance to the British King. These changes were made in each colony for itself alone. because those laws might happen to conflict. and Massachusetts a government of her own. known as Virginia. The provincial government of Virginia was the first established. They were established at different times. no interest in its municipal institutions. which originally extended over the whole territory. continued to be supreme therein. from their own people. any other. allegiance to the British King." They owed. and the whole character of their government changed. and of enforcing obedience to them. in political rights. separate and distinct in political functions. dependencies of the British Crown. with other British colonies. no common judicatory. to a common head. no common treasury. sometimes by its own action. without any connection with. and in political duties. but never by the joint agency of any other colony. without in any manner affecting the rest. Either. with nothing to distinguish their relation either to the parent country or to one another. consequently. to which government was their allegiance due? Virginia had a government of her own. even in the action of the parent country. The authority of that government was confined within certain geographical limits. They were not even alike in their organization. nor to bear arms in its defence. in no conceivable sense." When the colony of Plymouth was subsequently settled. the proprietary government of Pennsylvania was established. Some were provincial.2 These colonial governments were clothed with the sovereign power of making laws. or from assumptions of power acquiesced in by the Crown. because they might stand in hostile relations to one another. sometimes by the power and authority of the Crown. no influence nor control in its municipal government. and as forming a part thereof. and. they were not known as "one people" in any one function of government. the government of Virginia. and never with reference to the wishes or demands of any other colony. the charters of nearly all of them were altered. alike. or relation to. and some charter governments. The people of one colony were not liable to pay taxes to any other colony. The colonies had no common legislature. which applied to itself alone.
in the intercourse or diplomacy of nations. when they were not citizens of Virginia. it was effected. but would not have had a right to treat them as traitors. or protection on the other. by what process. any distinct or independent existence. that within the territory of the new government the authority of that government alone prevailed. or as disobedient citizens resisting their authority. and every other part of the British empire. in a limited sense." known as the people of the colonies? No such right was ever claimed. To what purpose. and it will scarcely be contended for now." in any intelligible and political sense.(subject only to its dependence on the British Crown). on the ground that it was part and parcel of the "one people. and for what purposes. without having assigned to them. when he requires his readers to reject the plain information of history. He claims too much consideration for his personal authority. nor confer privileges which were to be enjoyed or exercised in another. which had declared war. in favor of his bare assertion. in the face of the known history of the time. Could the other colonies have rightfully compelled it to unite with them in their revolutionary purposes. then. which would acquire an obligatory force. farther than they could be in any independent foreign States. Judge Story himself has furnished proof. and they followed the fate of the parent country. and owed a common allegiance. And though their mutual wants and necessities often induced them to associate for common purposes of defense. By what other means they came to be "one. or dreamed of. "though the colonies had a common origin." if. in a case so important to the common welfare. in all needful abundance. were the people of the colonies "one people. each. these confederacies . there was no right in all the people together. Each was independent of all the others. Such recusant colony would have stood precisely as did the Canadas. then. what relation would it then have held to the others? Not having disclaimed its allegiance to the British Crown." as to any purpose involving allegiance on the one hand. they had no direct political connection with each other. against the inferences most naturally deducible from the historical facts. without the assent of the parent State. owed her no allegiance and no duty. in all respects as before. it remains for Judge Story to explain. The assembly of one province could not make laws for another. I again ask. or else its supremacy was yielded to the new government. let us suppose that some one of the colonies had refused to unite in the Declaration of Independence. Every one knows that this last was the case. to coerce the members of their own community to the performance of a common duty? It is thus apparent that the people of the colonies were not "one people. They did not possess the power of forming any league or treaty among themselves. They were known only as dependencies. was sovereign within its own territory. and when their allegiance to another government might place them in the relation of enemies of Virginia?3 In farther illustration of this point. would have considered its people as enemies. What. How then could the people of this new government of Pennsylvania be said to be "one" with the people of Virginia. The colonies. and it has already been shown that this identity is not the necessary result of their common relation to the mother country. both in peace and war. He tells us that. If these views of the subject be not convincing. and the inhabitants of each were British subjects. it would still have continued to be a British colony. to show at what time. The charters of the colonies prove no identity between them. of the incorrectness of his own conclusion. There was neither alliance nor confederacy between them. but the reverse. are the "many purposes" to which Judge Story alludes? It is certainly incumbent on him who asserts this identity. subject to the authority of the parent country.
that it breaks forth. He tells us that the first Congress of the Revolution was "a general or a national government". he has fallen into some errors. in a single sentence. without due warrant." or political corporation. but their own difference of opinion. They made several efforts to procure the establishment of some general superintending government over them all." The English language affords no terms stronger than those which are here used to convey the idea of separateness. anomalous. RELATION OF THE COLONIES TO EACH OTHER DURING THE REVOLUTION — THEY WERE NOT THEN ONE PEOPLE. rather than as a right. was sovereign within its own territory". in supposing that they formed "one people. He acknowledges that .were of a casual and temporary nature. his book affords to every reader abundant materials for the formation of his own opinion. or more full and complete. for the candor with which he has stated the historical facts. that it "was organized under the auspices and with the consent of the people. however. Accordingly. he has alluded but slightly to the condition of the colonies during the existence of the revolutionary government. and in the powers and faculties of their governments. No commentary could make the description plainer." This brief review will. They presented the singular spectacle of "one people. Even here. among the colonies. which he himself has stated." and tried in vain to establish one. in every part of his work. and for enabling him to decide satisfactorily whether Judge Story's inferences from the facts. or for any purpose whatever. but is distinctly disaffirmed in every sentence. "Each. CHAPTER III. the rise." in any sense. The colonies were not only distinct in their creation. and were allowed as an indulgence. very little was required of Judge Story. contended for by Judge Story. distinctness. yet sufficiently in detail. often uncalled for. The unity." having its own legislature. as well as the jealousy of the Crown. in a limited sense. and has ventured to express decisive and important opinions. and has sketched with great rapidity. even "by league or treaty among themselves." and without the intervention of the functionaries to whom the ordinary powers of government were delegated in the colonies. and without power to confer either right or privilege beyond its own territory. and to sum up all. the members of which had "no direct political connection with each other. decline and fall of the Confederation. and independence. In the execution of the second division of his plan. "they had no direct political connection with each other!" The condition of the colonies was." They had "no general superintending government over them all. however. nowhere appears." and who had not the power to form such connection. made these efforts abortive. acting directly in their primary sovereign capacity. if Judge Story's view of it be correct. either as a historian or a commentator. Apart from all other sources of information. indeed. it is believed. He is entitled to credit. be sufficient to convince the reader that Judge Story has greatly mistaken the real condition and relation of the colonies. be warranted by them or not. but there was not even "an alliance or confederacy between them. The desire to make "the people of the United States" one consolidated nation is so strong and predominant. Each was "independent of all the others.
and Georgia not at all. Maryland. the Congress was a deliberative and advisory body. or. in order to consult upon their general condition. in the same year. and were acquiesced in by the people. The colonies complained of oppressions from the mother country. These grievances were common to all of them. 1774. in great part. during the presence of the war. because he was not the representative of a colony." &c. 1774. And yet he infers. New Castle. Rhode Island and Providence Plantations. so that.4 in like manner. neither as colonies nor by any portion of their people acting in their primary . John's.5 It is perfectly apparent that the mere appointment of this Congress did not make the people of all the colonies "one people. not indispensable. 1775. if not for most purposes at an antecedent period. or convention. North Carolina was not represented until the 14th September. New Jersey. however. A very slight attention to the history of the times will place this subject in its true light. It consisted of delegates from New Hampshire. Kent. as British subjects. for England made no discrimination between them in the general course of her colonial policy. This measure. Neither does it appear that any precise time was assigned for the duration of Congress. in the succeeding Congress. in Georgia. in 1774." All the colonies did not unite in the appointment. the united colonies must be considered as being a nation de facto. As early as 1765 a majority of the colonies had met together in congress. and because there was no proper opportunity. and some of the most important of these rights. In point of fact. that "from the moment of the Declaration of Independence.the powers of this Congress were but ill-defined. to raise nice questions of the powers of government. only from the confidence reposed in the wisdom and patriotism of its members. and beyond them none were given. for this reason. On the contrary. Lyman Hall was admitted to his seat. Connecticut from the city and county of New York. in Philadelphia. It was appointed for the sole purpose of taking into consideration the general condition of the colonies. had been denied by the British Crown. it was deemed necessary that the colonies should again meet together. that many of them were exercised by mere usurpation. between September. and. usurped. and Sussex in Delaware. and it was taken for granted that it would dissolve itself as soon as the duty should be performed. This Congress passed a variety of important resolutions. as colonists and British subjects. at least. but only through certain portions of her people. as asserted by themselves. and provide for the safety of their common rights." nor a "nation de facto. during all which time Georgia was not represented at all. for even the parish of St. in New York. and the 22nd October. since the resolutions of Congress had no obligatory force whatever. John's did not appoint a representative till May. as a delegate from the parish of St. Pennsylvania. the subsequent measures of the British Government gave new and just causes of complaint. It is also apparent that New York was not represented as a colony. The duty with which it was charged was extremely simple. Their rights. Virginia. Massachusetts Bay. it was not deemed important. and. led to no redress of their grievances. and South Carolina. and were anxious to devise some means by which their grievances might be redressed. and nothing more. Hence the Congress which met at Carpenters' Hall. on the 5th of September. and other counties in the province of New York. that all the colonies should be represented. For these objects no precise powers and instructions were necessary. and of devising and recommending proper measures for the security of their rights and interests. although he declined to vote on any question requiring a majority of the colonies to carry it. for the purpose of deliberating on these grave matters of common concern and they then made a formal declaration of what they considered their rights. from the exercise of powers thus ill-defined. had never been well defined.
and although some of them were expressly authorized to agree to it. as has already been shown. that is." Indeed. by delegates chosen by a part of her people.6 On the 22nd October. which had acceded after the Battle of Lexington). like those of the former Congress. as they might think proper." and that that body was not "a general or national government. for the royal party was so strong in that colony. It is equally clear that the powers. with which Congress was clothed. each colony and the people thereof acting for themselves. that it would have been impossible to obtain from the legislature an expression of approbation of any measure of resistance to British authority. 1776. free and independent States. Strictly speaking. himself informs us. to be held in Philadelphia in the following May." or uniting the colonies so as to constitute them "a nation de facto. but it commanded nothing. we are informed by Mr. Congress did not claim any legislative power whatever. 1774. Its acts. and the delegates thus chosen were clothed with substantially the same powers. The accession of Georgia to the general association was not made known till the 20th of July. that they had no power to form such government. Indeed. when it declared that the colonies there represented (including New York. were in the form of resolution and recommendation. but precisely the reverse. that no new powers were conferred on Congress after the Declaration of Independence. Accordingly delegates were chosen. and some of its most important acts. nor constitute "one people. that the Declaration was opposed by some of the firmest patriots of the body. for precisely the same objects. On the contrary. and of right ought to be. yet others were not. and any measure establishing "a general or national government. it did not venture to assume the function of authoritative legislation. in a passage already quoted. In the meantime Congress had proceeded in the discharge of its duties. it could not have been otherwise. for the relations of the colonies were still unchanged. New York was represented in this Congress precisely as she had been in the former one. nor could it have done so consistently with the political relations which the colonies still acknowledged and desired to preserve. were performed while these two colonies were unrepresented. It continued to hold this attitude and to act in this mode till the 4th of July. and which they were still anxious to preserve. they had no authority to make that Declaration. did not flow from. without involving a surrender of their rights as British subjects. and had not even resolved to declare themselves so at any future time. it recommended to its constituents whatever it believed to be for their advantage. The colonies were not independent. and by themselves. and . this Congress dissolved itself. were. and Congress was charged with the duty of devising such measures as would enable them to do so.assemblies. nor to enter into "any league or treaty among themselves.7 It is to be remarked. as in the former Congress. and the people thereof. they were extremely desirous to preserve and continue their connection with the parent country. Indeed. They were not appointed for any such purpose." or "nation de facto. and would have severed at once all the ties which bound them to the mother country. were at perfect liberty to act upon such recommendation or not. as they had been chosen to the preceding Congress. having recommended to the several colonies to appoint delegates to another Congress. The existence of such government was absolutely inconsistent with the allegiance which the colonies still acknowledged to the British Crown. for as it still held out the hope of reconciliation with the parent country. Judge Story. and among the rest the appointment of a commander-in-chief of their armies. and not in the form of laws. Its acts were in the form of resolutions. Jefferson. Each colony. and her delegates did not take their seats till the 13th of September." nor a government of any kind what ever." would have been an act of open rebellion.
without any new election or new grant of power. Wilson. each representative applied to his own State alone. except for deliberation and advisement. they certainly could not do so after the Declaration of Independence. They were. he has not been sufficiently specific. subjects who had no right. when he tells us that the "first general or national government" was organized "by the people?" . R. As it was not then a government. in the name of the States whose representatives they were. There was no original grant of powers to that body. acting each under the authority and instructions of his own. and without reference to any general scheme to which they were all bound to conform. and could not establish any new or valid relations between the colonies. We have reason to regret that in these. Indeed. no agreement. no law. and as they continued in existence. but would soon unite with the rest. In the ordinary business of that government de facto. their political condition and relations were necessarily changed by that circumstance. to which they could refer. Congress acted precisely as they did in all other cases. as already remarked. Maryland and Delaware were not yet ripe for it. Rutlege. and no farther de jure than the subsequent approval of its acts by the several States made it so. nor with the same extent of authority. the authority which appointed them had ceased to exist. and in such cases. Dickenson. precisely the same body after the Declaration of Independence as before. agents or ministers of independent States." They were elected by subjects of the King of England. nor devise an obligatory sanction. State. however. Congress had in fact no power of government at all. which the occasion had called into existence. and having no power whatever. organized by the people. the deliberative and advisory body. The different States gave different instructions. through whom they had consulted together as colonies. except so far as they respectively authorized their own delegates to bind them. It was. nor had it that character of permanency which is implied in the idea of government. in order to ascertain the extent of their powers. except what these instructions conferred.among the rest. by R. to establish any government whatever. New Jersey. and E. they gave no instructions to establish any such government. merely a government de facto. as they themselves admitted. This brief review will enable us to determine how far Judge Story is supported in the inferences he has drawn. and with a full reliance that those States would confirm whatever they might do for the general good. The States themselves were not bound by the resolves of Congress. they did whatever the public interest seemed to require. in the passages last quoted. by virtue of any inherent power in itself. or was suspended by a higher authority. on the ground that it was premature. as they were called into existence by the colonies in 1775. so long as they acknowledged themselves dependencies of the British Crown. In other cases. strictly. In entering upon so bold a step. Everything which they did. and when those subjects became citizens of independent States. that the people of New York. was without any other right or authority than what was derived from the mere consent and acquiescence of the several States. To what people does he allude. It could not pass an obligatory law. they called for specific grants of power. either in stating his proposition or in citing his proof. each according to its own views of right and policy. Livingston. there was no constitution. if not indiscreetly urged. upon the secure reliance that their acts would be approved and confirmed. The government exercised was. The dependent colonies had then become independent States. without some new grant of power. was functus officio. as already remarked. as in many others. it is difficult to perceive how they could form a "general or national government. The members did not all act under the same instructions. and not to any other State or people. after this period and before the Articles of Confederation.
whatever was its population or number of deputies. In New Jersey and Maryland the elections were made by committees chosen in the several counties for that particular purpose. they voted on all questions of public and general concern by colonies. without the intervention of the ordinary functionaries of government. that the deputies were elected by the "colonial legislatures." Here the general rule is stated to be. to say the least of it. Judge Story himself so informs us — that the members of the Congress of 1775 were elected substantially as were those of the preceding Congress. it was clearly the people of the several colonies. sovereign capacity.The first and every recommendation to send deputies to a general Congress was addressed to the colonies as such. or by committees appointed for the purpose. or by conventions. that they acted "directly in their primary sovereign capacity." except only for deliberation and advisement. according as the one or the other appeared most convenient or proper in each particular case." is. and without the intervention of the functionaries." are given as exceptions. neither her people nor her government had so far lost their attachment to the mother country as to concur any measure of opposition until after the battle of Lexington in April. as was done in Georgia and some others. As to New York. and elected deputies. If. and not a permanent body." and the instances in which the people acted "directly in their primary. as was done in part of New York. who were very readily received into Congress. Congress had no "original powers. It is of little consequence. as we have already seen. very bold. where the royal party was very strong. Although they did. or any nation de facto or de jure. in one who had undoubtedly explored all the sources of information upon the subject. to the present inquiry whether the deputies were chosen by the colonial legislatures. this government was organized by "the people" at all. and when the deputies met in Congress. therefore. or by the people in primary assemblies. in which the people performed that act in their "primary. Until the adoption of the Articles of Confederation. the people themselves assembled in those places. or one renewable from time to time. it was deemed necessary in many instances. in the choice of those deputies each colony acted for itself. and he could scarcely have failed to see the following passage. sovereign capacity. indeed. the only representatives which New York had in the Congress of 1774 were those of a comparatively small portion of her people. each colony having one vote. however. And even in those cases. 1775. where the spirit of opposition to the claim of Parliament prevailed. Marshall says: "The members of this Congress were generally elected by the authority of the colonial legislatures. and claimed no "sovereign authority " whatever. And where is Judge Story's warrant for the assertion. but in virtue of the original powers derived from the people. and in New York. not as the delegated agents of the government de facto of the colonies. It is well known — and. the members were chosen by each colony in and for itself. The assertion. authorizing an election of members to represent that colony in Congress." without the intervention of their constituted authorities. and were the representatives of that colony alone. All these modes were resorted to. as was done in most of the colonies. as was done in one or two instances. whichever mode was adopted. and. which is found in a note in the 168th page of the second volume of the Life of Washington. in . and where it is probable that no legislative act. that the appointment should be approved and confirmed by the ordinary legislature. to whom the ordinary powers of government were delegated in the colonies"? He is in most respects a close follower of Marshall. that "the Congress thus assembled exercised de facto and de jure a sovereign authority. Speaking of the Congress of 1774. then. and not the joint people of all the colonies. so that there were very few of the colonies. It was an occasional. without mingling in any way with the people or government of any other colony. But. in which delegates were appointed by conventions of the people. and not of any other colony. but in some instances a different system had been pursued. could have been obtained.
and could not execute its own resolves as to most purposes. Great confidence must necessarily be reposed in public rulers under circumstances of this sort. that no original powers of legislation were granted to the Congresses of 1774 and 1775. The great object which they had in view was to produce that concert of action among themselves which would best enable them to resist their common enemy. What.many instances. and not because they had any delegated authority to perform them. even impliedly. and never to the people. "exercise de facto" a power of legislation to a certain extent. then. they never lost sight of the fact that they were citizens of separate colonies. in pressing emergencies. It has already been stated. They knew that the government was temporary only. and not a single instance can be cited to the contrary. and that they could at any time recall any and every power which it had assumed. The circumstances under which they were called into existence precluded the possibility of any precise limitations of their powers. or acknowledged a different allegiance. and the acts became valid only by subsequent confirmation of them. and not by the rule. The colonies were suffering under common oppressions. and we may. with equal propriety. Its measures were adopted by the votes of the colonies as such. and never. and it is only from their acts that we can determine what powers they actually exercised. and best secure the safety and liberties of all. except by the aid and intervention of the colonial authorities. and were threatened with common dangers. however the people may have occasionally acted. reference was had to the colonies. THE NATURE AND EXTENT OF POWERS EXERCISED BY THE REVOLUTIONARY GOVERNMENT DID NOT MAKE THE COLONIES ONE PEOPLE. from the mother country. that it was permitted only for a particular and temporary object. The whole history of the period proves this. and have only to regret that Judge Story has not directed me to better guides. The course of the revolutionary government throughout attests the fact. yet they never held that power "de jure. what the extent of its "original powers?" From what "people" were these powers derived? I look in vain for answers to these questions to any historical record which has yet met my view. that. Judge Story's conclusion is not better sustained by the nature and extent of the powers exercised by the revolutionary government. It would be a violent and . of mere numerical majority. without the intervention of the authorities of their respective colonial governments. suppose that neither the people nor the colonial governments felt any disposition to scrutinize very narrowly any measure which promised protection and safety to themselves. CHAPTER IV. that the members were not the representatives of the people of all the colonies. was this "sovereign authority?" What was the nature. In all the acts of Congress. That body had no power to act directly upon the people. This fact alone is decisive to prove. even if it had been designed to clothe them with the functions of government. and no others had any right to mingle in their deliberations. We may well suppose. that the revolutionary government exercised every power which appeared to be necessary for the successful prosecution of the great contest in which they were engaged." by any grant from the colonies or the people. therefore. Which prevails in every legislative assembly of an entire nation. surrendered that character. for the judgment of each colony was pronounced by its own members only.
On the contrary. there was nothing in the powers. New Hampshire authorized her executive to issue letters of marque and reprisal. yet they had no power to extend to them that protection which they receive from the government of every foreign nation. so far as they can be known from their acts. For this offence. 1775. Neither could they bind the States to redeem them. At all events." These powers were not "exclusive. their own sovereign right and power as to that matter. to form alliances and make treaties. and punished under its sentence. Consul General of France. to contract debts and issue bills of credit on national account. the facts which I have mentioned prove that Congress exercised no power which was considered as abridging the absolute sovereignty and independence of the States. and various military operations were conducted by the colonies. Congress received ambassadors and other public ministers. for greater convenience. These instances are selected out of many. vessels of war were commissioned. South Carolina soon followed their example. In 1776. And not as to that matter alone. he is correct. or States. and there threatened violence to the person of Francis Barbe Marboise. that is. The case turned chiefly upon the law of nations. to merge their distinctive character. as sufficient to show that in the conduct of the war Congress possessed no "exclusive" power. A man by the name of De Longchamps entered the house of the French Minister Plenipotentiary in Philadelphia. as our author supposes. were entrusted exclusively to Congress. nor punish the counterfeiter of them. These were always admitted in terms. but they could not make them a legal tender. Massachusetts and Connecticut fitted out armed vessels to cruise against those of England. and Consul for the State of Pennsylvania. on their own separate means and authority. nor raise by their own authority the necessary funds for the purpose. (for was not a government. and the commissions of their officers were countersigned by the Governors of the States." however. and were never denied in practice. although I have sometimes. indeed. Congress seems to have exercised every power of a supreme government. he was indicted and tried in the Court of Oyer and Terminer of Philadelphia. called it so). with reference to the protection which it affords to . exercised by the revolutionary government. to say that the people. inconsistent with the perfect sovereignty and independence of the States. if so. meant thereby to me their distinctive character. for convenience. to authorize captures. in October. for New Hampshire established post offices. which established it. and. So far as external relations were concerned.forced inference. troops were raised. import that the power of Congress over the subject of war was "exclusive" only as to such military and naval operations as he considers national. from the powers of such an agency. Secretary of the French Legation. he afterwards assaulted and beat him in the public street. Congress were allowed to issue bills of credit. to direct and control all national military and naval operations. and the colonies (or States) retained. Many of those powers which. and to consolidate themselves into one nation. to institute appellate prize courts. however. could not be effectually exerted except by the aid of the State authorities. however great they might be. In point of fact. They assumed the right to "declare war and to make peace. The troops required by Congress were raised by the States. Ticonderoga was taken by the troops of Connecticut before the Declaration of Independence. such as were undertaken by the joint power of all the colonies. But the comma after the word "national " suggests a different interpretation. and actually asserted. The words of our author may. to surrender all the rights and privileges which belonged to them as separate communities.
Although the powers actually assumed and exercised by Congress were certainly very great. and they declare that the crime shall be considered as committed against the colonies individually. they were held at the will of the States. New Hampshire . and owed its entire efficiency to the co-operation and aid of the State governments. In June. 1775. in respect to national objects. in November. before the ratification of the Confederation. passed a resolution." There is in this passage great want of accuracy. in prize causes. as usual." The author. recommending to the several colonies to establish prize courts. and perhaps some want of candor. and were acquiesced in by the people. This could scarcely have been so. Congress had no power to coerce these governments. the question [of the powers of the Continental Congress] was most elaborately discussed before the Supreme Court of the United States. it was deemed necessary. and. or allowed. that body recommended the passing of laws for the punishment of treason. of paying public debts. This case occurred in 1784." clothed with "sovereign authority. The author. before the Confederation. in the important functions of raising an army. of providing a public revenue. as an incident. the power to lay an embargo was earnestly desired by them. however.foreign ministers. the boasted "sovereignty" of the Federal Government was merely nominal. after the adoption of the Articles of Confederation. furnished the best exposition of its constitutional authority. And that the actual powers exercised by Congress. the supreme powers of peace and war. "soon after the organization of the present government. that Congress. and giving security to the persons of foreign ministers. (3 Dallas' Reports. by the States. by at least one of the States. 1776. it only proves that. He informs us that. is furnished by their own journals. and at the same time to lend a sanction to their authority so far as they chose to allow it. A question was made. possessed. the right of entertaining appeals in the last resort. sovereign and supreme powers for national purposes. by the consent of the people of the United States. whether the authorities of Pennsylvania should not deliver up De Langechamps to the French Government. even in the opinion of Congress itself. among others. nor could it exercise any direct authority over their individual citizens. however. is not satisfied to rest his opinion upon historical facts. with a right of appeal from their decisions to Congress. The result of that examination was. of the true relation which the colonies hold to the revolutionary government. In 1776. and. to pass laws indemnifying those who might act in obedience to the resolutions of that body. he seeks also to fortify himself by a judicial decision. Thus. as united or confederated together. neglects to cite the judicial decision to which he alludes. It does not appear that the Federal Government was considered to possess any power over the subject. And in order the more clearly to indicate that many of their powers were exercised merely by sufferance. they were not always acquiesced in. since they emanated from the people.8 A conclusive proof. and were actually recalled by the Articles of Confederation. Thus it appears that. if they had considered themselves "a government de facto and de jure. to be dealt with at their pleasure. but was denied by the States. however great its previous powers may have been. and not against them all. or that it was deemed proper to invoke its counsel or authority in any form. 54. even in opposition to State legislation. but it must be the case of Penhallow and others against Doane's administrators. but if the powers of the Federal Government were less under those articles than before. in a case calling for an exposition of the appellate jurisdiction of Congress in prize causes.) Congress.
supreme power of war and peace. nor that the States had surrendered to it any part of their sovereignty and independence. This is his language: "The authority exercised by Congress. and returned the latter to Congress. and that the exercise of it became legitimate. was issued by Congress. and. that the legality of all captures on the high seas must be determined by the law of nations. the exercise of this. legitimate. should be judged of by Congress. appointed by Congress to take cognizance of such cases. that "Congress possessed." It is evident that this opinion. the appellate jurisdiction in prize cases followed as a necessary incident. in its decision. that this power was lodged in the Continental Congress by the consent and acquiescence of "the people". of necessity." This approval and ratification alone rendered. as to one of these powers. was approved and ratified by the several colonies or States. The brigantine Susanna was captured by a vessel owned and commanded by citizens of New Hampshire. it is fair to presume." the appeal was allowed to the Superior Court of New Hampshire. because they were such as the occasion absolutely required. but where the capture was made by "a vessel in the service of the united colonies and of any particular colony or person together.accordingly passed a law upon the subject. All the powers. does reside and is vested in the sovereign." He does not. when he says the powers exercised by Congress were approved and ratified by "the people. that New Hampshire had committed herself upon this subject. in his opinion. which Patterson contends for as exercised by Congress. sovereign and supreme powers for national purposes. in the mode prescribed by their resolution. authorize the idea of the author. An appeal was prayed to Congress and denied. Mr. a libel was filed in the District Court of New Hampshire. therefore. From the decision of this Court an appeal was taken to Congress. and that thus legitimated. it affirms that the "sovereign and supreme power of war and peace" was assumed by Congress. and the case was disposed of by the Court of Appeals. before the Confederation. He does not tell us to what people he alludes. . because "every one must be amenable to the authority under which he acts. Justice Patterson's opinion is founded mainly upon these grounds: That the powers actually exercised by Congress ought to be considered as legitimate. and were approved and acquiesced in by "the people". or its constituted authority. by the consent of the people of the United States. that the authority ultimately and finally to decide on all matters and questions touching the law of nations. That Court. and was duly condemned as prize by her own Court of Admiralty. because they received and filled up the commissions and bonds. while it sustains the authority of Congress in the particular case. in granting commissions to privateers. to carry into effect the sentence of the Court of Appeals above mentioned. only because it was approved and acquiesced in. that he intended to be so understood in regard to all the rest. that the validity of all captures made by virtue of that commission. may all be conceded. in any part of his opinion. by voting in favor of the exercise of the same power by Congress in the case of the brig Active. as with that of a consolidated government. On the contrary. they were as consistent with the character of a federative. without in the slightest degree affecting the question before us. does not prove its general supremacy. under which the capture in the case under consideration was made. and thereupon an appeal to the Superior Court of New Hampshire was prayed and allowed. was decided there. it resulted. and as the commission. and other similar powers assumed by Congress. he holds the opposite language. sustains the jurisdiction of the Court of Appeals established by Congress. After the adoption of the present Constitution and the organization of the judiciary system under it. by which an appeal to Congress was allowed in cases of capture by vessels in the service of the united colonies. The cause being legally transferred to the Circuit Court." On the contrary. and an appeal allowed to the Supreme Court.
he says: "If Congress. what no one has ever thought of denying. possessed any authority. represented all the colonies. previous to the Articles of Confederation. then. separate and distinct. and because they were sustained in so doing by the approbation of the several colonies or States. the power to establish prize courts. Congress possessed original sovereign powers. and proclaim their own . Surely. and. but lend us no support to the idea of any such unity among the people of the several colonies or States. and could. and not by all the people in the several provinces or States jointly. it would have been of no value in the present inquiry. in express terms. as I have shown. that the powers exercised by Congress were exercised "by the consent of the people of the United States. and afterwards became citizens of each State. to all intents and purposes. however. I will transcribe the entire passage relating to it: "In the next place. Even if this unity was not produced by the appointment of the revolutionary government. merely because Congress exercised them." or nation." Certainly. derived from the people of each province. to disarm Judge Story's conclusion. Cushing. which originally resided either in Congress or in any branch of the State governments. by the consent of "the people of the United States. therefore. belongs also the right to decide all questions touching the laws of nations." No language could be stronger than this. affirm the general propositions upon which Patterson and Iredell sustained the power of Congress in the particular case. unless given by all the States."' This decision. in the first instance. consequently. in delivering his opinion. or by the nature of the powers exercised by them. The examination of this part of the subject has probably already been drawn out to too great an extent. as the power of peace and war was entrusted to Congress. legitimated and confirmed.Judge Iredell. and. and wield the general strength. merely affirms. whose representatives they were. the powers of peace and war were most important. among these. alone. that the revolutionary government exercised every power which the occasion required. and that whatever powers they did in fact exercise." Even. "one people. because Congress. they held. he thinks there can be no doubt that this was the necessary result of the Declaration of independence." "I conclude. that every particle of authority. Iredell did not think so. Blair and Cushing. that. as our author supposes to have existed." "The authority was not possessed by Congress. and that they did not form "one people" in any sense of the term. finally. alone. But he leaves no room to doubt as to the source whence this confirmation was derived. After proving that the several colonies were. without formally discussing the question. that all these powers were not derived from any original grant. were acquiesced in and consented to. that wherever the powers of peace and war are lodged. was derived from the people who were permanent inhabitants of each province. upon which our author rests his favorite idea — that the people of the colonies formed. expressly says that "he has no doubt of the sovereignty of the States. express the general will. and acquiesced in by the people. In order that he may be fully understood upon this point. in the opinion of the Supreme Court. it was an authority. the colonies did not severally act for themselves. then. that this authority was conveyed by each body separately. The other two Judges. as will by-and-by be shown. if they court had so decided. goes much more fully into the examination of the powers of the revolutionary government. but are to be considered as belonging to Congress. as a necessary incident. our author was neither very accurate nor very candid in so stating this decision as to give rise to the idea that. in the first instance. but it would not be complete without some notice of another ground. He thinks that. that prize causes are of this character.
nor by persons chosen by them. connection with. in that act. or any of them. 'the unhappy and unnatural contest with Great Britain. for that reason." yet owing the same allegiance to one common superior. adopted a constitution of government. inherent sovereignty by the people themselves. chosen for that. to form a new government. 1776.' as in a prior declaration of rights. as formerly exercised under the Crown of Great Britain. No State had presumed. which was manifestly intended to be temporary. It was emphatically the act of the whole people of the united colonies. declared 'the government of this country. Naples. The people of the united colonies made the united colonies free and independent States. and a common agency.' as they said. should unite in a declaration of rights which they believed belonged to all of them all. had united in declaring that they were oppressed. at last. 1775. each having its own peculiar government. Nothing would be more natural. as organized under their charters to adopt. and Holland. while they were "dependencies" of the Imperial Crown of France. and ipso facto working an entire dissolution of all political. disdain all allegiance to it. to carry on their intercourse with other powers.' But the declaration of the independence of all the colonies was the united act of all. distinct and independent. for the purpose of effecting a common object. but that all this should unite them together. and absolved them from allegiance to the British Crown.independence. not merely as a practical fact. and allegiance to. resulting from their right to change the form of government. It was. It was not an act done by the State governments then organized. by the instrumentality of their representatives. or to provide for the exigencies of the times. Virginia. always been treated as an act of paramount and sovereign authority. If Spain. by a convention of delegates. through which. of itself. The Declaration of Independence has. by the measures of that Crown. too." The first question which this passage naturally suggests to the mind of the reader is this: if two or more nations of people. but it was done in compliance with the recommendations of Congress. the only proposition involved. than that nations so situated should establish a common military power. on the 29th of June. in Congress assembled. so as to form them into one nation. for the benefit of the whole. without any "direct political connection with each other. and when they acted. And this. 'during. they were called. it was in pursuance of the recommendation of Congress. a common treasury. Those charters neither contemplated the case nor provided for it. And South Carolina. and that they did. which each felt itself too weak to effect alone. nothing more than the union of several independent sovereignties. It was 'a declaration of the representatives of the United States of America. totally dissolved. this is. but this was in like manner 'established until an accommodation between Great Britain and America could be obtained. whenever necessary for their safety and happiness. New Hampshire also formed a new government. and to institute a new government. confessedly separate. in December.9 It is true that some of the States had previously formed incipient governments for themselves. The case here supposed is . and assume the station of "free and independent States. in March. complete and perfect per se. So the Declaration of Independence treats it. but in a legal and constitutional view of the matter by courts of justice. on the 2d July. 1776.' New Jersey. among other purposes.' and proceeded to form a new constitution of government. would that circumstance alone make them "one people?" Stripped of the circumstances with which Judge Story has surrounded it. but it was expressly declared that it should be void upon a reconciliation with Great Britain. Great Britain. established a frame of government. therefore. without consulting Congress on the subject.' 'by the delegates appointed by the good people of the colonies. accordingly. 1776. in the same mode and degree. is a consequence not readily perceived. It was an act of original. It was an act not competent to the State governments. the achievement of the whole. We should see." would they thereby have become one people? Barely this will not be asserted by any one.
could not extend to the time past. in the following passages: "We. CHAPTER V. the analogy is perfect. If they were so. But as to all purposes involved in the present inquiry. by the history of the time. was appointed. expressed through their agents in Congress. and the Declaration of Independence did not render them more or less identical. They might by their agreement. each acting for itself. he places the colonies. it is quite evident that the conclusion which he has drawn. by the colonies in their separate and distinct capacity. in point of. It depended upon those facts. whether the colonies were one people or not. to be received as proof that they considered themselves as one people already. upon the footing of any other separate and distinct nations. alone. if they were not so. and by the rules of fair criticism. by and in that act. in making them "one people. And having abandoned it. The argument is fair. not only by Judge Story. is necessary to be inquired into. but their power. to become "one people" for the future. fact. Indeed. as this question. The Congress of 1775. could not be correct. Naples and Holland. He is obliged. But it may be said that this fact ought. if not expressed." Let us test the correctness of this opinion. and until that fact is ascertained. (and I think it has been shown that they were). and. as to this matter. That fact. The opinion of the Congress of 1775. therefore. They suppose that such agreement is implied.precisely that of the American colonies. in the case of the colonies. and of right ought to be. THE DECLARATION OF INDEPENDENCE DID NOT CONSOLIDATE THE COLONIES INTO ONE PEOPLE. at least. distinct. make themselves one people through all time to come. in many respects. separate. if those colonies were. that the colonies united in the Declaration of Independence. Naples and Holland. by which independence was declared. but by others. unless it would be equally correct in the case of Spain. The effect attributed to the Declaration of Independence presupposes that the colonies were not "one people" before. and not conjointly with any other. than those of Spain. the author's reasoning as to the effect of the Declaration of Independence. They were the representatives each of his own colony. above supposed. then the fact that they united in the Declaration of Independence does not make them "one people" any more than a similar declaration would have made Spain. as has been before shown. and not of any . therefore. the relations of the colonies to one another were certainly closer. to wit: that the colonies were one people before the Declaration of Independence. then they were one people already. to one another. it is contended. It is true. and freely let it go for what it is worth. alone. the analogy here supposed does not hold in every particular. The mere fact. Naples and Holland one people. whatever it may have been. the representatives of the United States of America. could not possibly change the historical facts. an effect which is in no manner changed or modified by any other circumstance in their relation to one another. then. solemnly publish and declare that these united colonies are. did not necessarily make them one people. that the colonies did. and however strongly expressed." does not apply. and independent of one another. to abandon the ground previously taken. in the name and by the authority of the good people of these colonies. agree. as to these. free and independent States." "do.
and the members signed the Declaration in that way. in the adoption of that measure. each had authority to act in the name of his own colony. and not in that of any other. 1775. than simply to sever the tie which had theretofore bound them to England. that they meant anything more by the Declaration of Independence. therefore. of their wisdom and forecast.other. free and independent States. as Judge Story supposes. in the form of a distinct proposition. who acted in strict obedience to specific instructions from their respective colonies. "The Unanimous Declaration of the Thirteen United States of America". each giving one vote by all its own representatives. and not responsible for the act of any other. and of right ought to be. in common justice to the sagacity of Congress. that is. Men. So. and proclaim their own independence?" It is true that they acted together. composed of all of them together. for the common purpose of achieving their common liberty. and had afterwards agreed to unite their forces together to make a common cause of their contest. and had been so ever since their first meeting in May." they meant only that their respective communities. Is it true. A decisive proof of this is found in the fact that the colonies voted on the adoption of that measure in their separate character. therefore. united. if they formed one nation or body politic. and to submit their common interests to the management of a common council chosen by themselves. should thereafter be independent States. they declare. and to assert the rights of the separate and distinct colonies. nor by persons chosen by them?" that "it was emphatically the act of the whole people of the united . and that the same union. The necessity of such a measure must be apparent to all. whether they should continue in a state of dependence on the British Crown or not. it was as separate and distinct colonies that they deliberated on the Declaration of Independence. but is it not equally true that each acted for itself alone. should be continued between them as States. also. without pretending to any right or authority to bind any other? Their declaration was simply their joint expression of their separate wills. and the sole question before them was. by the mere act of declaring themselves independent. The measure under consideration looked only to their relation to the mother country. The instrument itself is entitled.10 it is impossible to suppose. would not have left it as a mere matter of inference from another measure in point of fact. and not that of any other. each expressing its own will. of States. that "the colonies did not severally act for themselves. and it had long before engaged their attention in a different form. When. meditating a measure so necessary to their common safety. and became States. that they act as "the representatives of the United States of America. each bound by its own act." they must of course be understood as speaking in the character in which they had all along acted." as independent States may be. as they would be. could scarcely have occurred to any one of them. and not of "one people" or nation. when they declared that "these united colonies are. Of course. wherein would their situation have been different? And is it true that this Declaration of Independence "was not an act done by the State governments then organized. each colony gave its own vote by its own representatives. separate and distinct bodies politic. and not to their relation to one another." and "in the name and by the authority of the good people of these colonies. If the colonies had severally declare their independence through their own legislatures. The idea of forming a closer union. and not by those of any other colony. by compact or agreement. it was already before them. they from that moment ceased to be colonies. which until then had been dependent colonies. and not amalgamated. then. Having determined that they would not. as separate and independent States particularly as the language which they use is fairly susceptible of this construction. precisely as before. which existed between them as colonies. as the representatives of separate and distinct colonies. "united. and not as the joint representatives of any one people.
prior to the Declaration of Independence. but of protecting them against oppression. they had commenced the revolution. and to continue only during the contest with England. to establish any form of government which might be acceptable to its own people. through the instrumentality of their own "governments then organized". upon fair terms.colonies. many of the colonies had declared their independence prior to the 4th July. and such as could not have been performed except by a sovereign people. In effect.. among other purposes?" What representatives were those that were chosen by "the people of the united colonies?" When and how were they chosen? Those who declared the colonies independent. (1 Elliott's Debates. and because the governments so established were. assert their sovereignty and independence. the colonies which established such governments did. "it was resolved to recommend to the respective. best conduce to the happiness and safety of their Constituents in particular. and contemplating the colonies as separate and distinct. sovereign right: and this was revolution. In point of fact. for that or any other purpose. then. 1776. by that very act. though not a more solemn affirmation of what she had previously done. 1776. They had no power under their charters. and were considered by England as in a state of rebellion. designed to be temporary. because he thinks that the colonies so acted only in pursuance of the recommendation of Congress. that several of the colonies had established separate governments for themselves. and to Virginia in December of that year. or only for a limited time. if any such representatives could possibly have been chosen by the colonies as then organized. in the opinion of the representatives of the people. "without consulting Congress upon the subject".) It is evident from the language here employed. Of what consequence was it whether the colonies noted upon the recommendation and advice of others. was but a more public. the 15th May. This Constitution continued until 1829. And whether the government so established was intended to last forever. on the 4th of July. did not affect its character as an act of sovereign power. to adopt such a government as should. 1775. He regards this as of little consequence. by the instrumentality of their representatives chosen for that. (Jefferson's Notes. contains one syllable of the matter. if that act was performed by representatives chosen by the whole people of the colonies. assemblies and conventions of the united colonies where no government sufficient to the exigencies of their affairs had been established. to New Hampshire and South Carolina. that Congress had no power over the colonies as to this matter. as has already been shown. they were chosen. Such recommendation was given in express terms. and on the 10th May. not for the "purpose" of declaring the colonies independent. therefore. 129. to change their governments. and no right to influence or control them in the exercise of the important function of forming their own governments. and her Constitution was adopted on the 28th of the same month. Of Virginia this is emphatically true. They could do so only by setting their charters aside. and would not have "presumed" to do it. referred it to the assembly or convention of each. 80. and of America in general. in common with the other colonies. 1776. Her declaration of rights was made on the 12th of June. 1st ed. and bringing about a reconciliation with the parent country. Her subsequent declaration of independence. a pledge to the whole world. or merely upon their own will and counsels? With whatever motive the act was performed. 128. that what she had resolved on in her . if possible.) If there were any other representatives than those concerned in the Declaration of Independence. and. that has yet met my view. 83. were chosen more than a year before that event. it was one of supreme and sovereign power. The author seems to attach but little importance to the fact. they were chosen by the colonies separately. in November." The preamble to this resolution was not adopted till. It recommended only. for the most part. and acting upon their inherent. no historical record.
and that foreign nations. they considered themselves all bound to the observance of their stipulations. enumerating them all by name. to be free. the distinct sovereignty of the States is carefully recognized. and they believed that the common authority. even in the earlier treaties with foreign powers. with all the others. and in this character that government always regarded them. This circumstance shows that the two forms of expression were considered equivalent. Thus the very act. is made between "the most Christian King and the United States of North America. North Carolina. which cannot be properly omitted. What then became of the sovereignty of which we speak? It could not be in abeyance. or for any purpose of government. the moment it was lost by the British Crown. to wit: the sovereignty over itself. Indeed. in 1778. in throwing off her former government.separate character. the sovereignty over one could not vest. in that form. she would unite with the other colonies in performing. in 1782. and were not. and establishing a new one for herself. Rhode Island. article declares. through their common agent. It has already been shown that. something like the following formula would naturally have suggested itself as proper: "His Britannic Majesty acknowledges that New Hampshire. and might have been abandoned as to some. and for which alone it had contended with the British Crown. and not by the subsequent recognition of their independence. South Carolina and Georgia. in any other. but not as forming with them tiny new and separate nation. and not with a new nation. in any political sense. Delaware. If it had been in the contemplation of the parties. the treaty of alliance with France. was sufficient to secure that object." &c. concerning recaptured vessels. in 1782. the colonies were separate and distinct. This is the character which they claim in the very terms of the Declaration of Independence. confirms to each one by name the sovereignty within its own limits. but separately over each. New York." &c. by which their former sovereign releases them from their allegiance to him. that the States had merged themselves into a single nation. Massachusetts Bay. She could not declare herself free and independent more distinctly. Doubtless it vested in the States themselves. they treated with them jointly. which was established between and among them. The first. to wit: New Hampshire.. and retained so to others. The language employed is not suited to convey any other idea. New Jersey. The same form is observed in the treaty of amity and commerce with the States General of the United Netherlands. composed of all those sovereign countries together. The provisional articles with Great Britain. It is true. it must have vested somewhere else. Thus. but "the United States of America" is the style adopted. and not severally. In the convention with the Netherlands. in 1782. than she had already done. to wit: New Hampshire. united. in 1783. sovereign and independent States that he treats with them as such. either in whole or in part. and in the treaty with Sweden. Each took to itself that sovereignty which applied to itself. considered that they treated with distinct sovereignties. and independent State. and so also in some others. by which our independence was acknowledged. that "His Britannic Majesty acknowledges the said United States. "one people. proceeded upon the same idea. Connecticut. The Declaration of Independence broke this connection.11 There is yet another view of this subject. ." The sovereignty over them was in the British Crown. in this character they formed the Colonial Government. in treating with the revolutionary government. Maryland. Connecticut. the names of the States are not recited. Virginia. Massachusetts Bay. Pennsylvania. Thus each colony became a free and sovereign State. By that act. as they were separate and distinct as colonies. indeed. prior to the Revolution. by asserting her sovereign and irresponsible power. sovereign. but that sovereignty was not jointly over all. But. Rhode Island and Providence Plantations. and acknowledges it to be a free. the colonies became free States.
too. whose authority was without any adequate sanction which it could itself apply. &c.. jurisdiction and right. the previous sovereignty and independence of the States. and the course pursued in doing so. in Congress assembled. how. or to what extent the sovereignty. when. as to all the important functions of sovereignty. were clearly surrendered by the Articles of Confederation. . from the provisions of that instrument. The difference between the two forms of expression. I venture to affirm that the history of the world affords no similar instance of folly and infatuation.Massachusetts Bay. and for the most part exercised by usurpation on its part. each acting for itself. after the final ratification of the Articles of Confederation in that year. as enjoyed by the States under the previous government. as early as 1778. throughout. and by their aid and support. that a nation once sovereign has ceased to be so. NOR CONSOLIDATE THEM INTO ONE PEOPLE. was deemed sufficient to give them any binding force or authority. some of which. will be apparent to every reader. although he acknowledges that he cannot tell. performed it. with equal clearness and strength. which they acquired by declaring their independence. which existed only at their will. the colonies are to be presumed to have yielded this sovereignty to a government established by themselves for a special and temporary purpose. and every power. and legitimated only by the acquiescence of those who appointed it.12 CHAPTER VI. jurisdiction and rights". which is not by this confederation expressly delegated to the United States. sovereign and independent. contemplate the States as free. attest. Whatever may have been the condition of the colonies prior to 1781." The obvious construction of this clause requires that we should apply these latter words only to "powers. that it should escape the observation of any one. and their entire independence. for these are not partible. It requires strong and plain proof to authorize us to say." &c. if they formed altogether "one people?" And yet the States. believe this of the colonies. which. Those articles declare that "each State retains its sovereignty. and the strict adaptation of each to the state of things which it contemplates. What had the States in their separate character to do with that act. are a free. this is clear enough. and binding itself. Indeed. THE ARTICLES OF CONFEDERATION DO NOT IMPAIR THE SOVEREIGNTY OF THE STATES. Nothing less than the ratification of them by all the States. by another in 1779. each acting separately for itself. in 1781. But their entire sovereignty. their entire freedom. former colonies of Great Britain and now united together as one people.13 It is singular. freedom and independence. and yet they were not obligatory until Maryland acceded to them. and which. there is no room for doubt on the subject. was surrendered. sovereign and independent State. whose powers were wholly undefined. with any degree of confidence or precision. are reserved. and the States alone. and by another in 1780. that the very fact of adopting those articles. was a mere name — the shadow without the substance! If the fact was really so. The articles were confirmed by ten States. And yet Judge Story requires us to. According to him.
the representatives of only nine States appeared. THE CONSTITUTION DID NOT CHANGE THE SOVEREIGN ATTITUDE OF THE STATES. merely because some of the framers. We are not. laborious industry. OR CONSOLIDATE THEM INTO A NATIONAL GOVERNMENT The third division of Judge Story's work commences with a history of the adoption of the Constitution. and of course the States possessed before "sovereignty. . without due caution. I profess my utter inability to perceive." as it occurs in the clause above quoted. to lay down rules of interpretation. direct and collateral. Judge Story has hazarded. Perhaps the author has fallen into one error. This also is given in an abridged form. If these views on the subject be not wholly deceptive. For myself. The author next proceeds to state the various objections which were urged against the Constitution." When the deputies first met in Philadelphia. and that they are not to be regarded as sovereign States after that event. jurisdiction. and they also retained every "power. and independence. certainly.14 CHAPTER VII. 1787. freedom. not to attach to these discussions an undue importance. joined by those of three others. or some of the adopters of it. and. which was not possessed before. expressly surrender. the opinion that the colonies formed "one people. Nothing can properly be said to be retained. In the execution of this part of his task he has displayed great research. of course. in their condition. And we cannot reasonably suppose that the debaters always expressed their deliberate and well weighed opinions in all the arguments. The brief summary which he has given of the arguments by which the Constitution was assailed on the one hand. in stating that "at the time and place appointed." either before or after the Declaration of Independence. and a very loose confederation theirs undoubtedly was. but affords great aid in understanding that instrument. any nearer approach to political personality or individuality. is not only interesting as matter of history. we have no means of determining by what process of reasoning they were led to their conclusions. an important one. they were. therefore. than may be found in a mere league or confederation between sovereign and independent States. to inquire who is the final judge or interpreter in Constitutional controversies. by which they sought to achieve a single great purpose. Their arguments are valuable as guides to our judgments. to consider the Constitution as the one thing or the other. and." These they retained without any qualification. however. and extensive judicial learning. and defended on the other. and right. soon after. chose to characterize it in their debates." which they did not then.There is much force and meaning in the word "retains. We should be careful. to examine the Constitution in its several departments and separate clauses. with the replies thereto. to examine the nature of that instrument to ascertain whether it be a compact or not. or limitation. finally. All the members of the various conventions did not engage in the debates. in May. but it omits nothing which can be considered material to the inquiry. but not as authority to bind them. the representatives of twelve States assembled.
too. at the same time. if this fundamental position be wrong. in so doing. As a compendium of what others have said and done upon the subject. as a commentator. and more plainly announced in the second. formed the Constitution under which we live. that any class of politicians are disposed to deny the authority of the judgments of the Supreme Court. the author pursues the idea cautiously hinted in the first division. must take the authority of the author as conclusive. we were "for many purposes one people. and none better could be desired. as the author understands it. undertakes to acquaint himself with the Constitution of the United States. as colonies. only reiterated his own judicial decisions. in a subsequent part of this review. and he now carries it out boldly in its results. it is so full of matter. whose opinions are not lightly adopted. Having informed us that. not contract and stipulate with each . The inferences fairly deduced from it impart to the Constitution its distinctive character. in relation to which great and contested political questions have arisen. It is not perceived. it would have been much more valuable if it had contained references to the authorities on which its various positions are founded. In this division of the work. whenever he can. This is a great defect in a work of this sort. of course. for. It is only in questions of political power. the people of the United States. instead of merely extracting their substance. would advance. upon the authority of the Supreme Court. In most cases. as contradistinguished from the States as such. with his book as his guide. and is the less excusable. The reader who." or nation de facto. The reader. do ordain and establish this Constitution for the United States of America. and the authorities upon which he founds whatever opinions he ventures to inculcate. owes it alike to his reader and to himself. however.15 We shall have occasion to examine this subject more at large. Even in this view of the subject. because it might have been easily avoided. if he differ from the author upon this point. This was to be expected. because. therefore." and that the Declaration of Independence made us "a nation de facto. The reader requires this for the satisfaction of his own judgement. The language is: "We. that instrument is not in many of its provisions. his work is very valuable. and the writer ought to desire it as affording the best evidence of his own truth and candor. as to render little farther investigation necessary. In discussing the various clauses of the Constitution. and. and a thorough acquaintance with the history of that instrument. The consequences of this position are very apparent throughout the remainder of the work. The opinion. should settle this question for himself in the outset. A writer who undertakes to furnish a treatise upon a frame of government. involving the rights of the States in reference to the Federal Government. We could not suppose that one. that the Constitution was formed by "the people of the United States. in most cases. is founded exclusively on the particular terms of the preamble. that he has presented any new views of it. the author founds himself." as contradistinguished from the people of the several States. that is. however. It facilitates investigation. a principle which he rejected as a judge. he will be compelled to reject by far the most important part of the third and principal division of these commentaries. to name the sources whence he draws whatever information he ventures to impart." he now assumes the broad ground that this "one people. no higher authority in the interpretation of the Constitution is known in our systems. whilst. or offered any new arguments in support of the constructions which it has heretofore received.In the interpretation of the Constitution. what he represents it to be. or else he will often find himself perplexed to discover the sources from which he derives his information. he has. in most cases." "The people do ordain and establish. Judge Story displays great research.
is in the following words "We. and it is matter of just surprise that it should be so often referred to. in the absence of all proof to the contrary. If the preamble of the Constitution had declared that it was made by the people of France or England. 1787. If the convention which formed the Constitution was not. when the following resolution was passed: "It was moved and seconded to appoint a committee of five. and discountenances all idea of consolidation. The preamble. therefore. acting through their separate Conventions. Rhode Island and Providence Plantations. On the 6th of August. North Carolina. insure domestic tranquility. The preamble. promote the general welfare. declare and establish the following Constitution. which passed in the affirmative. Massachusetts. is of no sort of value in settling this question." "The people of the United States. historically untrue that it was adopted by the aggregate people of the United States. Pennsylvania. and the authentic history of the transaction. which is a supreme law. do ordain and establish this Constitution for the United States of America. Virginia. And if the Constitution. New York. have been received as evidence of that fact. and the reader will at once perceive. if it was appointed by a different power. indeed. but were authorized merely to "revise the style.) On the very next day this preamble was unanimously adopted." (1 Elliott's Debates. and various alterations and amendments adopted. therefore. (but without any change in the preamble). that it carefully preserves the distinct sovereignty of the States. On. But the only purpose for which it can be used is to aid in the discovery of the true object and intention of the law. the committee appointed for that purpose reported the first draft of a Constitution.other. the people of the States of New Hampshire. in order to form a more perfect union. was adopted by the several States. The presumption is. and secure the blessings of liberty to ourselves and our posterity. The preamble was in these words: "We. particularly as the committee had no authority to make any change except in the style. be used to the same extent in the construction of a constitution. 1787. and arrange the articles agreed to by. until the 8th of September. and it may. not the distinct people of a particular State with the people of the other States. nor had it any right to act in that character. (Ib. and so pertinaciously relied on. for that purpose. History alone can settle all difficulties upon this subject. it had no right to give itself that title. or to vary the meaning of its plain language." and arrange the matter in proper order. a convention of the people of the United States.) It is manifest that this committee had no power to change the meaning of anything which had been adopted. The preamble can. but surely it would not be so received against the plain testimony of the instrument itself. Delaware. Maryland. in the first place." (Ib." (Ib. 324. The history of the preamble itself ought to have convinced our author. to revise the style of. 263. it might. 326. that the two were considered as substantially the same. when formed. I will endeavor.) It does not appear that any attempt was made to change this phraseology in any material point. 255. provide for the common defence. the people of the United States. it is. South Carolina and Georgia. of course. that the inference which he draws from it could not be allowed. or to reinstate the original. in no case. that the preamble of a statute may be resorted to in the construction of it. Connecticut. It is an admitted rule. for the government of ourselves and our posterity.16 to establish justice. Still less can it be used to change the true character of the lawmaking power. as they reported it. New Jersey. the House. Judge Story rejects the lights of history altogether. The difference in the mere phraseology of the . in point of fact." In thus relying on the language of the preamble. to meet him on his own ground. where these would otherwise be doubtful. be allowed to contradict the law. the 12th of the same month they made their report. do ordain.) The draft of the Constitution thus submitted was discussed.
"it was moved and seconded to proceed to the comparing of the report from the committee of revision. and to them referred to for arrangement. "The people of His Majesty's colonies. uncertain whether more than nine would adopt it or not. as no such plural termination is known in our language. that the want of it affords no argument in favor of the author's position. was by striking out the word "to. rests that position upon the ." conveying." before the words "establish justice". It means simply: "We. do ordain. and this. another and a perfectly conclusive reason for the change of phraseology. the peoples. It was. of course. that the Constitution should go into operation when adopted and ratified by nine States. the others had no sort of right to insert her as a party. yet." "the people of the united colonies. is perfectly consistent in the two characters in which he appears before us. that the convention considered the preamble reported by the committee of revision." is made the foundation of the judgment of the Supreme Court in that case. the least that we can say is. It is not from such vague and uncertain promises. the probability is that the expression would have been "we. it would be altogether improper to name them as parties to that instrument. The expression actually adopted answers that purpose fully. for on the 13th September." &c. compared. collected from the Journals of the Convention. to the more general expression "the United States"." The inference. And the same was read by paragraphs. however. in some places. we are not very distinctly informed. is irresistible. consequently. It is. Rhode Island. But. can be wisely drawn. however. Indeed. This construction corresponds with the historical fact. and. she was not even represented in the convention. not altogether unworthy of remark. The only change which was made in the preamble. the idea of the people of the several States. will be sufficient to show that the author has allowed it an undue influence in his construction of the Constitution. and if they should not. in delivering the opinion of the Court. so important and controlling. It is remarkable that although this question was directly presented in the case of Martin vs. and not to those who should refuse to do so. This brief history of the preamble. and." There is. without supposing that it was intended thereby to convey a different idea as to the parties to the Constitution. 1787. therefore. that conclusions.two was certainly not overlooked. States.) In what particulars these corrections and amendments were made. that the word "people" has no plural termination in our language. The revised draft contained a proviso. through the whole course of the Revolution. and although the fact that the Constitution of the United States "was ordained and established. similar language was not unusual. the commentator takes no ground which the judge does not furnish. Hence it became necessary to adopt a form of expression which would apply to those who should ratify the Constitution. Judge Story. and the probability is. without intending to convey any other idea than that of the people of the Several colonies or States. as unanimously "agreed to by the House. but emphatically by the people of the United States. except such as would make "the report of the committee of revision" "correspond with the articles agreed to by the House. Hunter's Lessees. which passed in the affirmative. corrected and amended. as substantially corresponding with the original draft. in reference to this inquiry. the people of those States who have united for that purpose." (Ib. Judge Story. If it had." "the people of the United. distinctly. perhaps. that no other change was made in any of the articles. 338. and reconciles the language employed with the circumstances of the case. As to one of them. not by the States in their sovereign capacities." are forms of expression which frequently occur. too. with the articles which were agreed to by the House. from the States by name.
was. They accordingly appointed commissioners. but their character as distinct and sovereign States is always carefully and jealously preserved. for the formation of a better system. but of reforming the government in any and every particular in which the interests of the States might require it. suggested to the Legislature of Virginia the necessity of forming among all the States a general system. were generally acknowledged. involved other subjects not within their commission. I have endeavored to show. Judge Story has given a correct history of the preparatory steps towards the call of a convention. to meet at Annapolis. but I am not aware that any decisive step was taken in any of the States. who approved of the recommendation it contained. and its total inadequacy to the purposes of an effective government. do we perceive any feature of consolidation. calculated to advance and protect the trade of all of them. and. therefore. however. (of which the history of the world affords many examples). through which we have hitherto traced them. We are. and on the 21st of February. in consequence of the conflicting and often hostile commercial regulations of the several States. however. and which could not be properly adjusted without a great enlargement of their powers. In no one of the various conditions. It is true. although in his own opinion. who shall have been appointed by the several States. and that by the Articles of Confederation. And this. 1787. the defects of the confederation.preamble alone. when the first movements towards the formation of the present Constitution were made. "that in the opinion of Congress. prior to the establishment of the confederation. prior to the year 1786. simply reported this fact. but that each State became a complete and perfect sovereignty within its own limits." It is much to be regretted. resolved. as their common agent and representative. commissioners from such of the other States as should approve of the proceeding. soon discovered that the execution of the particular trust with which they were clothed. This report was also submitted to Congress. emphatically. if by them ratified and adopted. a convention of delegates. and offers no other argument whatever to support it. that the revolutionary government. that they did not become so by the Declaration of Independence. and reporting to Congress . each State expressly reserved its entire sovereignty and independence. we ought not to be satisfied with simply proving that the author's conclusions are not warranted by the facts and arguments from which he derives them. while in a colonial condition. were not "one people" in any political sense of the terms. to contemplate them as sovereign States. which have exerted the most important influence upon the destiny of mankind. which was to be submitted to all the States. in the preceding part of this review. to be executed by Congress. It was one of those remarkable events. too. Such of the commissioners as met. and yet have sprang from causes which did not originally look to any such results. In that year the difficulties and embarrassments under which our trade suffered. either by our judges or by the instructors of our youth. They. for the purpose not merely of forming a uniform system of commercial regulations. that the people of the several States. a government of the States as such. and recommended to their respective legislatures to appoint delegates to meet in general convention in Philadelphia. for the sole and express purpose of revising the Articles of Confederation. as in others. Justice to the subject requires a much more full and detailed examination of this important and fundamental question. it is expedient that. for the purpose of preparing a uniform plan of commercial regulations. then. In this case. through Congress. upon the right decision of that case rested "some of the most solid principles which have hitherto been supposed to sustain and protect the Constitution of the United States. be held at Philadelphia. on the second Monday in May next. that principles so important should be advanced as mere dogmas.
They were not known as citizens of the United States. the only government of the United States. such alterations and provisions therein. 185. which was strictly the representative of the States. if the question now before us be not." since the history of the transaction. with certain exceptions. each State having one vote. it is sufficient to remark that they were all exercised in the name of the States." in the sense in which he uses those terms. these delegates did. render the Federal Constitution adequate to the exigencies of government. in whatever mode each State might choose. that there were no such people as "the people of the United States. head. They could. and did not adopt and confirm its act as their own! Even. The members voted in Congress by States. there are other views of it scarcely less decisive against our author's position. The Articles of Confederation formed. to all the privileges of citizens of every other State. were relied on to execute the resolves of Congress. and Congress did. at that time." and not by "the people of the United States". or other common executive.) Such was the origin of the Convention of 1787. appointed by the States. and did not otherwise result from the nature of their political connection."' (1 Elliott's Debates. but this was by express compact in the Articles of Confederation. in point of fact. only when "agreed to in Congress and confirmed by the States. recall their representatives. approve. precisely as any sovereign may recall his minister at a foreign court. in point of fact. there could not be a citizen or subject of that nation. It was only by virtue of citizenship in some particular State. In the first place. delegates were. Congress. Congress had no power to make such citizen. It is apparent that the delegates to that body were to be appointed by the "several States. and send others in their places. that its citizens could enjoy within any other State the rights of citizens thereof. were not represented in that body. and. of course. It would seem to follow. that if the States. I have to remark. is to be discerned in any part of this whole proceeding. No other agency than that of the States as such. that the Constitution was formed by "the people of the United States. and the preservation of the Union. a question of historical fact. the citizens of every State were entitled. in . therefore." and not to "the people of the United States". We may well ask. as shall. either by naturalization or otherwise. Congress was. &c. in the strictest sense. It is true. Without deeming it necessary to enumerate all the powers which they conferred on Congress. ratify and confirm the Constitution which they formed. in point of fact. in point of fact.and the several legislatures. and confirmed by the States. did not form one nation. we recognize a league between independent sovereignties. when within the territories thereof. adopt." and not when confirmed by "the people of the United States. from what unknown source our author derives the idea. and of. proves that "the people of the United States" did not appoint delegates to the Convention. The members were appointed by the States. even as he has himself detailed it. as to all the more important operations of the government. In all this. and that their proceedings were to be part of the Constitution. thus united together by league. sovereign and independent States. and the States did. at their own will and pleasure. vagabonds. however." Accordingly. without reference either to Congress or the other States. whatever might be the number of its representatives! There was no President. as a necessary consequence. which it is unnecessary to enumerate. the representative of the States. report to Congress and the States. merely and exclusively. when agreed to in Congress. The States alone. Indeed. we are to collect from them alone the true nature of the connection of the States with one another. that they were to report their proceedings to "Congress and the several legislatures. and not one nation composed of all of them together. as free.. and in other features of the confederation. such as paupers.
at any time hereafter. independent of the constituted authorities. by virtue of which any such authoritative expression of the common will and purpose of all the States could have been made. contained no provision by which "the people of the United States" could express authoritatively a joint and common purpose to change their government. simply because they have the physical power to do it. It would be revolution in the strictest sense of the term. designating the people of the several States. however. and what were the political relations which they bore to one another? What was their sovereignty. Be this as it may. be made in any of them. If "the people of the United States" could not. and the Union shall be perpetual. therefore. touching this subject. no one ever supposed that this course was pursued in the case under consideration. It is equally clear that there was no right or power reserved to the States themselves. forfeited all the rights of a citizen in each and all of the States. . So far as the Federal Government was concerned. or expedient. conferred no right and subjected to no duty? Who were "the people of the United States?" Where was their domicil. both for the calling of the convention and for the ratification of the Constitution. No mode. which involved no allegiance. amend or abrogate their form of government. if we concede that there was such a people as "the people of the United States. alter. in point of fact.the legislation either of Congress or of the several States. A law of Congress authorizing them to do so. take the subject into their own hands. for want of right in that body to pass it. vote at elections. nor shall any alteration. without invoking the aid of their constituted authorities. each acting. if they choose. that government itself was equally destitute of all power to do so. The power and jurisdiction of each State was limited to its own territory. which would have been absolutely necessary to give it force and effect. In that character alone could he own real estate. and if they had all concurred in it. There was no one right which the citizen could exercise." our author's position is still untenable. just. Even. the Articles of Confederation. And as "the people of the United States" did not. by any aid to be derived from their common government. and no one duty which he could be called on to perform. resolutions and laws of Congress and the State legislatures. could have affected such an object. No single State. sue or be sued and in that character alone could he be called on to bear arms. was adopted in strict conformity with the recommendations. for itself. and not because such a proceeding would be either wise. would have been void. They may do this. and what was the nature of the allegiance which it claimed? Whenever these questions shall be satisfactorily answered. except as a citizen of some particular State. or establish a new one. I admit that the people of any country may. from which alone it derived its power. He who ceased to be a citizen of some particular State. as it was only authorized to act. and as contradistinguished from the action of the mass of the people of all the States. have effected such a change in their Constitution. was this citizenship of the United States. without becoming a citizen of some other particular State. Every measure. or to pay taxes. then. I shall feel myself in possession of new and unexpected lights upon the subject. that would have been strictly the action of the states as such. it had no power to legislate for the people of any other State. distinctively as such. What. they could not do it by any agency of those authorities. The only clause in the Articles of the Confederation. which Congress might have prescribed for ascertaining the will of the people upon the subject. could have had that sanction of legal authority. is in the following words: "And the Articles of this Confederation shall be inviolably observed by every State.
" and reporting suitable "alterations and provisions therein. Nothing less. If they have not so agreed. there is no such Constitution. that there is no power to change. a majority of the people of all the States were to be found in the four States of Massachusetts. consequently. What authority was there. I speak of free and voluntary government. Let us ascertain. For Congress was. If the Constitution has superceded the Articles of Confederation. they had exercised such a power." Even if this power had been given to Congress alone. even in Congress. from the authentic history of the times. It becomes obligatory only by its adoption and ratification. and not the power of the people of the United States. There is yet another view of this subject." and not in the name or by the authority of "the people of the United States. to each other State. without subjecting the exercise of it to the negative of the States. the people of less than one-third of all the States could change the Articles of Confederation. it would have been a plain act of usurpation and violence. and. formed by them as such. as contradistinguished from them. freely and voluntarily established. or the people of all the States." The proceedings of the convention were to be reported to Congress and the . so that. The resolution of Congress already quoted. But. when we see it expressly provided that nothing less than their unanimous consent. We need not. superior to the States. look beyond the attestation of the Constitution itself. and one only. which could undo their work? What power was there. other than the States themselves. as we have already remarked. and each State. in the deliberation of that body. It will scarcely be denied by anyone. strictly the representative of the States. and surely that act." But it is not the mere framing of a constitution which gives it authority as such. It professes to have been "done by the unanimous consent of the States present. was precisely equal. as States.. it is because the parties to those articles have agreed that it should be so. whence did they derive that right? Certainly not from any agreement among the States. and the Articles of Confederation are still the only political tie among the States. it would still have been the power of the States in their separate and independent capacities. that the confederation was a government strictly of the States. If therefore. being entitled to one vote. however. Pennsylvania and Virginia. and deriving all its powers from their consent and agreement. upon this idea. and it could not be legitimately derived from any other source. except the power which formed it. then. for full evidence upon this point. there was no power which could alter or abolish the government which they had established. makes it the constitution of those only who do adopt it. It results from the nature of all government. than a majority of the States could have carried the measure in question. surely there could be no doubt that the power to change their common government was reserved to the States alone. if we may judge from the apportionment of representation as proposed in the convention. therefore. contemplates a convention "for the sole and express purpose of revising the Articles of Confederation. Besides. New York. should be sufficient to effect that object. &c. by whom our own Constitution was adopted and ratified.unless such alteration be agreed to in Congress of the United States and be afterwards confirmed by the legislature of every State. although those articles expressly provided that they should not be changed without the consent of all the States! There was then no power superior to the power of the States. which was authorized to declare that their solemn league and agreement should be abrogated? Could a majority of the people of all the States have done it? If so.
was by them approved and agreed to. and others with provisos and propositions for amendment. are no where appealed to. and was afterwards. This brief history of the formation and adoption of the Constitution. and by them ratified and adopted. Indeed. laid before conventions of the several States. conclusively that the people of the United States. and that a bare majority of the people. being as they were separate and distinct political communities. without reference to any other State. which is familiar to the mind of every one who has attended to the subject at all. "when ratified by nine States. too. are founded on the preamble to that instrument. it may well be doubted whether any other form of ratification. for authority and sanction to that instrument. as contradistinguished from the people of the several States. Let us suppose that the people of the States of Massachusetts." as an aggregate mass." when used in a political sense. without previously overthrowing their own municipal governments. and were to become obligatory. ought. Even if the preamble be entitled to all the influence which has been allowed to it. by adopting it. that it would have become the Constitution of the United States. only when "agreed to in Congress and confirmed by the States. that the "people of the United States" formed the Constitution. in as distinct a form as can well be imagined. some of them unconditionally. and not on the rest. adopt it? Was it ever ascertained whether a majority of the whole people were in favor of it or not? Was there any provision. they could not. In this proceeding. the . which." This is precisely the course of proceeding prescribed in the Articles of Confederation. and could not have an thing to do with the matter. that no such majority was ever ascertained. Pennsylvania and Virginia. and that. If the Constitution had been made by "the people of the united states. by which it was possible to ascertain that fact? It is perfectly well known that there was no such provision. either of law or constitution. New York. This single example shows. nor ratified their act. or even contemplated. There can be no doubt. and should silence for ever all those arguments. prima facie. none other was contemplated. as it seems to me. in fact. in favor of consolidation. as we have seen they probably did. of the convention. the new Constitution was submitted to Congress. nor otherwise adopted it as obligatory upon them. would have been valid. At all events. Did that majority. "The people of the United States. as it is to be understood in reference to the present subject." between the States ratifying the same. have had that right. is perfectly plain. to be perfectly satisfactory and conclusive. I do not perceive with what propriety it can be said. Judge Story's construction of its language is not. containing.several legislatures. that it shall become obligatory. by a single example. They ratified at different periods. have united themselves into one mass for that purpose. a majority of the whole people. the new Constitution would have been obligatory only on those who agreed to and adopted it. had adopted and ratified. in each of the other nine States acting in their separate character as States. since the Constitution itself provides." a certain portion of those people would have had authority to adopt it in the absence of all express provision to the contrary. and. as has already been remarked. than by the States themselves. each State acted for itself. since they neither appointed the convention. had nothing to do. The distinction of which I speak may be illustrated. The distinction between the people of the several States and the people of the United States. I have already explained the terms "a people. Even it they could have made it their Constitution. by the suffrages of a decided minority. had been unanimous against the Constitution. This was certainly State action. in pursuance of the recommendation. probably not exceeding one-fourth of the aggregate people of all the States. Accordingly. even then. we may concede that a majority would.
Even the vast and clear mind of the late Chief Justice of the United States. in this respect. which never failed to disembarrass and elucidate the most obscure and intricate subject. or else they affirm what history proves to be false. and those who made it. have yet been made to prove this important position. while colonists. out of place. is highly influential and important. and to some extent which has never been defined. very naturally. He . without one serious attempt to prove it. consequently. Indeed. that the Constitution is necessarily federative. that it admits very few new views. the people of the United States. which are sufficient in themselves to prove that the foundation on which the consolidationists build their theory. given it an undue credit with the public. and even their separate existence. in some of its most important provisions. have been deemed necessary to bestow quite as much attention on this part of the work. mean "we. of the present Constitution. I would not be understood as contending. Few men. In any other acceptation. yet there was nothing to prevent the States from surrendering." In this acceptation. perhaps. therefore." may. is constantly inculcated by those who are anxious to consolidate all the powers of the States in the Federal Government. The argument is not yet exhausted. however. is unsubstantial and fallacious. the unity or identity of the people of the United States has been taken as a postulatum. the subject has been so often and so ably discussed. that scarcely one systematic argument. and asserted. inquire narrowly into the subject. concludes that the Constitution is not a compact among sovereign States. without any violence to the rules of fair construction. however. In all his judicial opinions in which the question has been presented. what is the true character. in regard to those well established historical facts. far too few. and I am aware that much of what I have said is trite. and very few attempts of any sort. In this inquiry. in the previous part of his work. and that little. that all argument to prove it true would be supererogatory and useless. nor out of time. they are either without meaning. which. and still fewer new arguments in support of old views. not as matter of history. whether they have in fact done so or not. The idea that the people of these States were.only one of which it is susceptible. I am induced to think. too. The author. is new. in the provisions of the new system which they adopted all their power. and of the Constitution itself. the people of the States united. "We. merely because it was made by the States as such. and indeed necessarily. I readily admit. in what I have already said. in other words. carrying out the idea of a unity between the people of the United States. The true inquiry is. have. and. are now. It is still.17 It would not. are not in general skeptical enough to doubt what is so often and so peremptorily asserted. particularly in parliamentary debates. its terms conform to the history of the preamble itself. he had treated as a postulatum. or. but as warranting and controlling his construction of the Constitution. It is not. with that sort of hardy confidence which seems to say. It is remarkable. therefore. and could not have been changed except by the States who made it. to that of the whole Constitution. The continued repetition of this idea. an open question. if they chose to do so. if it were not evident that the author himself considered it of great consequence. the history of their previous condition. perhaps no part of it. and not by the aggregate people of the United States. that although the previous system was strictly federative." in some sense which has never been explained. and there is nothing in the present condition of public opinion to deprive it of any portion of its original importance. appears to have shrunk from this. to refresh the memory of the reader. and even those who do. and the boldness with which it is advanced. "one people.
taken distinctly. whoever they may be. there is not one person in the United States. as qualifying or forming a part. are superior to those of the States. that when the Federal Government transcends its constitutional power. or by "the people of the United States". If in this latter sense." There is a want of appositeness and accuracy in the first sentence of this extract. from the decisions of the Supreme Court. it must be. that a State has a right to judge of its own obligations. that Judge Story himself would not venture to maintain them. This has been repeatedly affirmed by our courts. There is not. are properly determinable by the federal courts. touching the true nature of the Constitution. as a general proposition. the Supreme Court is the proper tribunal in the last resort. or because it is necessarily implied. on the nature and extent of those obligations. to a certain extent. and judge of its obligations. have expressly agreed to make it so. which renders it somewhat difficult to determine whether the author designed it as a single proposition. and when. on its face. then." We all admit that the power and authority of the Federal Government." and still less to "control" the constitutional obligations of that government. that no citizen nor State has an independent right to "construe. And so also of those cases in which the rights of the States . within its constitutional sphere. and. since it never entered into the conception of any one. If the first. consequently. of course." that is. either because it contains. "to construe. by the act of ratifying the Constitution. The jurisdiction of the federal courts extends to certain cases. or which may be expected to arise hereafter. therefore. in some instances. within that system. So far as the Federal Government is authorized to act on the individual citizen. as to the third. and that every citizen is under an absolute obligation to render them respect and obedience: and this simply because his own State. control or judge of its obligations. it is to be deemed a compact. of the third. it is not acting within its "obligations. are not true in themselves. Who. We all admit it to be true. both State and federal. with a view to control them. it is not easy to see why he announced it. is to determine whether it has so transcended its constitutional obligations or not? It is admitted that. any tribunal of appeal. and the last is so obviously true." the parties to that government. and neither of them was necessary. and absolutely final. I confess. and contemplating the permanent subsistence of parties having an independent right to construe. in establishing that tribunal. It is admitted on all hands. the powers of the one and the rights of the other. nor does it propound any question which has heretofore been contested. and no farther." whoever those parties may be. If he designed a series of propositions. For example: he can scarcely mean to say that our government is not a "contract" whether made by the States as such. And the decision is binding too. so far as the relation of the citizen to the Federal Government is concerned. and co-ordinate in others. that no one would dream of denying it. then the two first are so obviously false. who would venture to differ from him. and that neither a citizen nor a State can "judge. and has never been denied by any class of politicians. it is presumed. And. and to certain others affecting those of the individual States. are no longer under any duty to respect or obey it. All that was ever contended for is. control. because the States. so far as they relate to such State itself. These two propositions." as a general right. affecting the rights of the individual citizens. from the nature and objects of a frame of government. however. stipulations to that effect. It involves no point of difference between political parties.contends that it is "not a contract imposing mutual obligations. to judge of those of the Federal Government. I do not very clearly discern what bearing it has on the question he was examining. or as a series of independent propositions. has commanded him to do so. and it is perfectly clear that it "contemplates the permanent subsistence of the parties to it. decide. that the parties to the Constitution had "an independent right.
If the States are parties as sovereign States. He himself knows. But there are many cases involving the question of federal power which are not cognizable before the federal courts. the examination which he has given of the Constitution. and. that the Constitution would have contained some express declaration to that effect. even though it contain no express agreement or declaration so denominating it. Everything which he has urged as argument to prove his proposition. and altogether defective as a statement for argument. that a deed. is scarcely as extended and philosophical as we had a right to expect from him. as to these. may well be true. he has merely asserted a truism which no one will dispute with him. his proposition is wholly untenable. In this sense. and this simply because it may "result from the nature and objects of our government" that it is a compact. and to decide upon its own rights and powers. then it is not a compact. who are the parties to the Constitution. as a judge. if it does not result from the nature of all government. and yet our government may be a compact.are referred to the federal tribunals. but they are bound by the decisions of the federal courts. the proposition is obviously untrue. he is altogether inaccurate. control and judge of the obligations" of the Federal Government. to enter more fully into the question. I have already shown that if he means by this. then it follows. who is the common umpire? The statement here given. His own reasoning. not from the name which the parties may choose to give it. that it is a compact. If the author designed to take this view of the subject. nor presented any such analysis of it in any respect as to enable the reader to form any satisfactory conclusion as to its true character in the particular under consideration. and if there be nothing in our Constitution to show that it is so. That proposition may mislead the judgment of the reader. If. It is very possible that our Constitution may be a compact." that it is so. I shall take occasion. shows that he means by the word "stipulations. Taking his words in their most enlarged sense. so far as they have authorized and agreed to submit to them. however. but cannot possibly enlighten it. is designed only to show that the author's proposition does not involve it. if they had meant it as a compact. may be allowed its full effect. He has not even alluded to the frame and structure of the government in its several departments." he means simply that the effect must necessarily result from the provisions of the Constitution. of course. by the words "stipulations to that effect. as a necessary consequence. in that sense. and to this extent. whether such be the result of other governments or not. would have used "appropriate terms" to convey that idea. we must look out for some other umpire. and. but in the sense in which his own reasoning shows that he himself understands them. even in the strictest sense in which he has understood the term." and that those who ratified the Constitution. or other instrument. in regard to the true nature of the Constitution. and though it may not "result from the nature and objects of a frame of government. that each of them has the right which belongs to every sovereignty. that the "United States were no strangers to compacts of this nature. Certainly. It is precisely in this case that the question. His first argument is. and every sentence of the Constitution which he has cited for that purpose. it is strictly true that the parties have not "an independent right to construe." something in the nature of express agreement or declaration. receives its distinctive character. but from its legal effect and . in a subsequent part of this review. becomes all important and controlling. he is probably correct in his idea. He has been scarcely less unfortunate in the next proposition. in reference to it. though he is not accurate in his language. of the leading point of difference between the great political parties of the country. to construe its own contracts and agreements.
but would not necessarily affect its obligation as to the rest. but those who assert that they would — and the author is among the number — must either abandon that idea. and not for the right either to repeal. the construction of it in this respect. all the authorities which it has established cease to exist. or assert any right. from this and other views of it. It is certain." and not a consolidated government. if we are to take it in the full latitude in which it is laid down. to convey the idea of a compact. to wit: that the Constitution is not a compact. as such. to which our author has arrived upon this point. except upon the very supposition which he disallows. The Seceder asserts only that a State is competent to withdraw from the Union whenever it pleases. The argument. contain "appropriate terms. and. Judge Story displays a want of proper definiteness and precision. is not sound. is a compact of precisely this nature. abrogate or suspend it. therefore. to wit: that the Constitution was formed by the States. or they must admit that the act of secession does not break up the Constitution. If it would. except as to the seceding State. our Constitution was made by "the people of the United States. and not by the people of the United States. or. Ours is a compact or not. does not enter into his original proposition. therefore. or suspend it". or suspend it". or otherwise. that a "conclusive" argument upon this subject is furnished by that clause of the Constitution which declares that: "This Constitution. The people who make a law. Certainly it is very possible so to frame a compact. The question. and the judges in every State shall be bound thereby. they cannot." or of half a State. which shall be made in pursuance thereof." Hence he concludes that the "people of any State cannot by any form of its own Constitution or laws. suspend it. under the authority of the United States. precisely as its provisions make it so. or abrogate or suspend the Constitution. either make any demand. may repeal. and ought to influence. anything in the Constitution or laws of any State to the contrary notwithstanding.operation. or other proceedings. upon the principles of all our institutions. "a mere confederation. It does. or abrogate. however. Even in this acceptation. I think. The Nullifier contends only for the right of a State to prevent the Constitution from being violated by the general government. in the statement of his proposition. and if. and I propose presently to show. may influence. and the laws of the United States. or which shall be made. however. and it can avail nothing. upon the author's own principles. that no party to it shall have a right either to "repeal or abrogate. who are the parties to it. as he supposes. nor . shall be the supreme law of the land. For the moment the Constitution is destroyed. and all treaties made. repeal or abrogate. either "repeal or abrogate. in its nature. as to the other States. or enforce any claim. The question of the right of a party to a compact to repeal or abrogate or suspend it. then "the people of any State. indeed. but does not assert that in so doing it can repeal. There is no longer such a government as that of the United States. I am at a loss to perceive how it establishes the proposition with which he set out." in the aggregate. then the rest would have no right to coerce the seceding State. even in the opinion of those who are supposed by the author to be least friendly to it. The conclusion. utterly destroy the compact as to the seceding party. The same rule applies to constitutions. in any one respect. and if it be possible to do so. Our own Constitution. Secession would. however. nor to place her in the attitude of an enemy. then the mere absence of such right does not even tend to disprove the existence of compact. again. that it is." Here. or suspend it. Our author supposes. can. if they happen to be a majority of the whole." if we take those words in an enlarged sense. is not that to which he originally designed that his premises should conduct him. they would not have such right. of course.
if he has found either in the one or the other. of the powers and rights and duties arising under that instrument. or incident of. that our author should have formed such a conclusion. and existing in his own times. if there is not." Admitting. The proposition is. in the way we have seen."18 There are few minds. in the next argument by which he proposes to prove the main proposition. that it is not a compact. because. have gone beyond our own Confederation. the reader will probably think that it does not answer the expectations which the public have formed upon the author's powers as a reasoner. He must. was yet treated as a government by the people at home. as I cheerfully do. he informs us that "the cardinal conclusion for which this doctrine of a compact his been. then it was incumbent on the author to show it. of itself. I am yet unable to perceive how it demonstrates that our Constitution is not a compact. may be thus stated: "Our Constitution is not a compact." within its prescribed sphere of action. since an instance to disprove it." Judge Story must excuse me — I mean no disrespect to him — if I express my unfeigned astonishment that he should have admitted this passage into a grave and deliberate work on the Constitution. I think. which. His own historical information. is the supreme judge for itself. imports legal obligation. is not quite clear enough to be taken as a postulate. in construing the Constitution. also. to say the least of it. however. Taking his whole chapter upon this subject together. There are still fewer who will not feel surprise. but that each State. and because that government is the supreme law. with so much ingenuity and ability. have been a most careless observer of passing events. The same idea is substantially reaffirmed. sovereign power. because it is a government. produce such a result? If there is. This. forced into the language of the Constitution. in the strictest sense. in any possible exercise of it. The . that he has done something less than justice to them. and recognized as such by all foreign powers. must have furnished him with numerous instances of governments established by compact. expressed in the debates concerning it. but were exclusive. May not a compact between sovereign States be a government? Is there any such necessary restraint upon. in the view which he has given of their principles. These have already been sufficiently examined. but the authorities authorized to alter or abolish it. had but just passed under his critical examination and review. and a still more careless reader of the publications of the last ten years. permanence. and he himself will admit that the proposition. and the argument is. It was also "supreme. there is no common umpire. each department of the government of each State. He need not. or from the opinions of members of the various conventions. or to discern the connection which it has with the promises. although a compact among sovereign States. that our Constitution is not a compact. After laboring. and uncontrollability by any. if he had drawn on its ample funds. prepared to embrace this conclusion. that it cannot. "The design" (of the Constitution) "is to establish a government. The author's proposition and argument.result from the argument which he had immediately before used to sustain it. reduced to their simple terms. that all this is strictly true. His political opponents will be apt to think. furnished by the history of his own country. nay. (for the latter no where alludes to it). upon this very point. The remaining arguments upon this point are merely inferences drawn from the absence of express words in the Constitution. indeed. is avowedly to establish that. the slightest authority for the opinion which is here advanced. to prove that our Constitution is not a compact. its rights and powers over the most important subjects of general concern were not only superior to those of the States. because it is a supreme law. his argument is of no force.
which the Constitution has not taken away. And it is not true. and worse than puerile notions. whenever they shall cease to subserve the purposes of good order.most ultra of those who have contended for the rights of the States. then. and which attributes to a large class of his fellow-citizens opinions which would justly expose them to the scorn of all correct thinkers? That class profess to hold. With what other motive. that in construing the Constitution. It is. and others will be stated when we come more directly to that part of our subject. as cumbrous and useless. It is their object to preserve the institutions of the country as they are. that without them there is no effective check upon the Federal Government. It is a great mistake to suppose that they have ever contended that the right of State interposition was given in the express terms of the Constitution. if they maintained the loose. which involves no disputed or doubted question of constitutional law. that that government can increase its own powers to an indefinite extent. they have not "forced this principle into the language of that instrument. They believe that those doctrines contain the only principle truly conservative of our Constitution. only because it is an incident of their sovereignty. sincerely believing that nothing more than this is necessary to secure to the people all the blessings which can be expected from any government whatever. in which the author lays down the proposition. that . Neither is it true. under the monarchy. The author. so far as my information extends. and that. has ever entertained the absurd notion here attributed to them. The passage above quoted affords not the least striking instance of this. By the word "judge. could scarcely have failed to perceive the difference of the two propositions. that any political party has ever supposed that each department of the government of each State had a right to "judge for itself. It is difficult to suppose that the author could have been uninformed of the fact. then. It is the peculiar misfortune of the political party to which I have alluded. and. and. Their principles will cease to be dear to them. therefore. there is no common umpire. which the author has not thought it improper to impute to them. and of regular and established government. the doctrines of the State Rights' school of politics. the whole character of our government will be so changed. nor political partizan. in their utmost latitude and in their strictest applications. I venture to affirm. They are no lovers of anarchy nor of revolution. into which we shall have insensibly glided. the weakness of stating a proposition merely for the sake of the poor triumph of refuting it. as a general proposition. even in the wildest dream of political phrensy. that no political party. I cannot impute to an author of his acknowledged ability. acting through its own constituted authorities. Cases have already been stated. of course. did he make a statement which is unsupported. in substance." The right in question is supposed to belong to the States. They would consider themselves but little entitled to respect as a political party. and. to be misunderstood and misrepresented in their doctrines. as a matter of fact. it has never been contended for by any political party whatever. that even its forms will be rejected. because they are lovers of the Constitution and of the Union. therefore. have asserted no such doctrine as he has imputed to them. ultimately. in this sense. as he is pleased to assert. that this must happen in the natural course of events. disjointed. has ever been deemed of the least force in this matter. The better and more prevalent opinion is. of the powers. nor could he have been unconscious that they did not depend upon the same course of investigation or reasoning. rights and duties. that any political party has ever asserted." he must be understood to mean decide finally. arising under" the Constitution. In the broad sense. Neither is it the necessary or legitimate consequence of any principle which they have avowed. in which the Supreme Court is universally admitted to be the common umpire. that nothing short of the power of all the State. that they contend strenuously for the rights of the States. it is presumed.
in the short paragraph above quoted. but in the case of the Alien and Sedition Laws. The conclusion follows irresistibly from the premises. they recommended such alterations and provisions therein. This tends to prove that public opinion at the time had not drawn the nice distinction which is now insisted on. were an inadequate Constitution. the opinion of Congress. therefore. And the political party whose principles he has endeavored to hold up to reproach. however. that union or compact was a constitution of government. in the strangest way imaginable. the legislature was very properly considered as representing the power of the whole State.19 "The sole and exclusive purpose" of the convention was so to amend. New Hampshire. however. Instead of disproving our promises. in their acts of ratification. they. the Articles of Confederation. As to this matter. Their resolution recommends the call of a convention. except by a convention called for that express purpose. which we have just examined. and of all the States that adopted their recommendation. It is worthy of remark. as would form "a more perfect union. and . therefore. Those who contend that our Constitution is a compact. in fact. and because that is the only mode in which sovereign States treat with one another. unworthy alike of their patriotism and their reason. and. supports his position that our Constitution is not a compact. are bound to disprove the other. will look in vain for the publication or other authority which sustains him. the provisions of the Articles of Confederation. But little importance. Judge Story has fallen into three most remarkable errors. and the preservation of the Union. It is clear. and that those who had for eight years been living under a compact. as would render the Federal Constitution adequate to the exigencies of government. misunderstood the principles which he attempted to explain.a State cannot properly so act. They say that the Constitution is a compact. The opinion of that Congress which recommended the call of the Convention seems to have been very different. they assume that they are wrong. had never for a moment imagined that it was not a government. upon the principles of the Union. and those who deny the one. as would make the same compact an adequate Constitution. This was the course pursued by South Carolina. very properly place their principles upon much higher ground. proving that he has. and forming treaties with foreign powers by virtue of its provisions. and. at least. that in the opinion of Congress. Nothing is said about forming a new government. ought to be attached to reasoning of this kind. with the professed object of instructing them in the truths of constitutional interpretation. expressly call the Constitution a compact. which were clearly a compact. did not suppose that a compact could not be a government." In. Our adversaries begin to reason at the very point at which reasoning becomes no longer necessary. It is submitted to the reader's judgment to determine how far the reasoning of the author. for the purpose of revising the Articles of Confederation. and no other State indicates a different view of it. that of the States. has a right to demand of him why he has chosen to attribute to them absurd and revolutionary notions. because it was made by sovereign States. between a government and a compact. no such thing was contemplated at the time.. or add to. and the author's own State of Massachusetts." &c. and reporting such alterations and provisions therein. Thus. The young and plastic minds to which he addressed himself. or changing the essential character of the existing one. already existing. Virginia acted through her ordinary legislature.
and in favor of the rights of the States. and even where their most natural construction would be in favor of consolidation. and in all its leading and distinguishing provisions and. except by the authority of the State. I affirm that it is. The Senate is composed of two members from each State. of course. and nothing short of the clearest proof can warrant us in concluding that it has surrendered it. and if there happen to be a surplus in any State less than the established ratio. and not in connection with any other State. and throughout the whole progress of it. and to give it such a construction as is consistent with that idea. THE UNION A FEDERATIVE AND NOT A NATIONAL GOVERNMENT Having disposed of this preliminary question. (if there be any such case). except a citizen thereof. The House of Representatives consists of members chosen in each State. Every fair and legitimate inference is otherwise. In all cases. They must have maintained the same character when they entered upon that work. — This consists of two houses. In the choice of representatives. where the language and spirit of the Constitution are doubtful. No one can be elected to represent any State. And.then. each State votes by itself. and that they were. we are bound to regard it as a compact. Vacancies in the representation of any State are to . and is universally admitted to be strictly federative in its structure. distinct. because those who made it could not make it in any other way. the surplus is not added to the surplus or population of any other State. Each State prescribes the qualifications of its own voters. but is wholly unrepresented. apart from any influence to be derived from that role of construction which has just been laid down. triumphantly deny our conclusion also. The number to which each State is entitled is proportioned to its own population. by force of its own terms. even with a view to the formation of a new common government. it is still a compact. or the result of a compact. We will first examine it in the structure of its several departments. in its essential character. independent and perfect sovereignties. at the time. If we establish that the Constitution was made by the States. it follows that they could not treat with one another. that it is to be so interpreted. the duty of doing so cannot be enforced. chosen by its own legislature. we should still incline against it. and for its own representatives. nor for the representatives of any other State. in order to make up the requisite number for a representative. therefore. that it is so in all its departments. Its sovereignty is the very last thing which a nation is willing to surrender. as the right to vote is prescribed by the State. the Constitution only providing that they shall have the qualifications which such State may have proscribed for the voters for the most numerous branch of its own legislature. a federative and not a consolidated government. in its structure. We are not to presume that the parties to it designed to change the character in which they negotiated with one another. therefore. whether a federative or a consolidated government. we now approach the Constitution itself. CHAPTER VIII. therefore. Whatever the government may be. In determining its essential character. whatever be its size or population. unless no other construction can be admitted. except in their several and sovereign characters.20 The Legislature. and not to the population of the United States. and is regulated in its numbers according to a prescribed ratio of representation.
It would be easy to demonstrate that this fact does not warrant such a conclusion. and it is obvious that they are strictly national. into numbers according to the prescribed ratio. and not federative. The second argument is. The first is. If the House of Representatives were national. that its measures are carried by the votes of a majority of the whole number. Holland and some other provinces had three votes each. There in no reason. all farther argument superfluous. upon the action of the States. of course. to prescribe the qualifications of voters. The States alone can do these things. and to enforce the performance of that duty. nor to supply the vacancy thus created. History abounds with examples of such confederations. except only that it may prescribe the "times. or the interest which it has at stake. by the example of the other branch of the federal legislature. the very existence of the House of Representatives depends. however. nor from the modes in which these powers are exercised. and not by those of a majority of the States. be considered "national. It is not. there is not one feature of nationality. and. in the particular now under consideration. as much as does that of the Senate." It can neither prescribe the qualifications of the electors. The whole arrangement has reference to the States as such. This is but simple justice. which is strictly federative. and over the very appointment of which the nation. The argument. except where higher considerations disallow it. apparent to me.be supplied under writs of election. places and manner of holding elections. but all reasoning is unnecessary. In order to make the House of Representatives equally so. All these things the State legislatures can do. the people of the United States must be so consolidated that the Federal Government may distribute them. there would then be a strict analogy between the popular branches of the federal and State legislatures. and others only one vote each. without regard to State boundaries. The States General of the United Provinces were strictly a federal body. proves nothing. that we can determine the true character of a legislative body. and no unrepresented surplus be left in any State. therefore. its wealth. and the former might. and renders. The true rule of decision is found in the manner in which the . but each one has a representation proportioned to its population. as such. so that all the people may be represented. proportioned to its strength. Yet it never was supposed that for this reason the United Provinces were a consolidated nation. The Senate. nor impose any penalty upon them. and the rule ought to prevail in all cases. and is carried into effect solely by their authority. There are only two reasons which I have ever heard assigned for the opinion that the House of Representatives is national. for refusing to elect. votes in the same way. A single example of this sort affords a fall illustration of the subject. and in that body. because it proves too much. with propriety. from the apportionment of its powers. within their respective States. why a league may not be formed among independent sovereignties. giving to each an influence in the management of their common concerns. A State may withdraw its representation altogether. and Congress has no power to prevent it. in any practical sense of the term. The Council of State had almost exclusively the management and control of all their military and financial concerns. whilst some had two. since the conclusion is disproved." But it is difficult to imagine a national legislature which does not exist under the authority of the nation. issued by the Executive of such State. In all this. can exert no effective control. The Federal Government has no agency in the choice of representatives. that the States are not equally represented. one of which I will cite. If these things could be done under the Federal Constitution. the "nation" would have authority to provide for the appointment of its members.
the true principles of the confederation could not be preserved. and. They hold. And. The number of electors to which each State is entitled is equal to the whole number of its representatives and senators. therefore. The people of each State vote within the State. who are themselves chosen by the people of each State. in the case before us. whereas. no act of legislation whatever can be performed without the consent of the States. when chosen. is preserved with equal distinctness. in some one State. as the Senate is the peculiar representative of the States. "The people of the United States" are equally unseen in that important measure. These officers are chosen by electors. whatever be its population. that the legislative department is so. Neither is a complete legislature in itself. It may so happen that the unrepresented surplus. Each State. so far. if it were federative. give their votes within their respective States. and at such times and places as the States may respectively prescribe. with equal propriety. and for their own electors. because it adds two to the electors of each State. and can alone compel them to vote. but if the legislative department were national. that the House of Representatives is not federative. The Federal Government can exercise no rightful power in the choice of its own Executive. whatever be their comparative population. It cannot be replied. This provision is even more federative than that which apportions representation in the House of Representatives. acting by and for itself. without giving to each party to the compact a place and influence in each branch of the common legislature. nor the . There can be but one reason for this: As the Constitution was made by the States. we have already seen. even admitting that those powers are truly and strictly represented in the other branch. in any part of this proceeding. which is absolutely inconsistent with all idea of a confederation. There is not the least trace of national agency. something like equality would be found in the constitution of it. in this feature of the Constitution. with perfect security. The Executive. and in such mode as itself may prescribe. whether or not the States have preserved their distinct sovereign characters. and neither can pass any law without the concurrence of the other. that. and for no others. The question is. is. and that. It is true that the check is mutual. Each State proscribes the qualifications of its own electors. and not elsewhere. there would be no national feature in it. This was due to their perfect equality as sovereign States. not equal to the general ratio. The electors. the exclusive agency of the States. Large surpluses would be arbitrarily rejected in some places. however. is entitled to at least one representative. because national legislation implies a unity.body is constituted. But there is one other provision of the Constitution which appears to me to be altogether decisive upon this point. — In the election of the President and Vice-President. may be greater than the whole population of some other State and yet such latter State would be entitled to a representative. there is nothing to prevent the members of a confederation from exerting their several powers. be represented in others. If they have done so in any part of it the whole must be considered federative. a complete check and control over the powers of the people in this respect. and not national. as such. and smaller numbers. in any form of joint action which may seem to them proper. there would be no federative feature in it. if the House of Representatives were national. federative. places them on an equality. Congress consists of the House of Representatives and Senate. Upon what principle is this? Surely. We may safely admit. and yet contend. Neither a majority.
All doubt upon this point. could be overbalanced by a minority. if it was designed to abandon it. should be entrusted with the power to remove him. except in their character as citizens of the several States. It is true that he may also be constitutionally elected with a majority of the States. Why. with less than half — perhaps with little more than a fourth of the people in his favor. can choose a President. the House of Representatives elects the President. because the States may. then. In case of the death or constitutional disability of the President. we may have a President constitutionally elected. proportioned to their population. that they shall possess influence. In doing this. for those only. in the election of some officer by the Electoral Colleges? No good reason for it has yet been assigned. and then they vote by States. in the representatives of the States. (supposing those States to be unanimous against the candidate). And this is still farther proved by the provision of the Constitution relating to the election of the Vice-President. the elective franchise is confided. from the three candidates which have received the largest electoral vote. for the Senate is the representative of the States.whole of them together. and each may elect its own electors by a majority of only one vote. of course. should this federative principle be preserved. whose officer the President is. that is. If the President could be chosen by the people of the "United States" in the aggregate. But there is no mode. that those who considered the principle safe and necessary in one form of election. so far as I am informed. The power to try the President is vested in the Senate alone. If we add their minorities to the votes of the other States. all the members of each State giving one vote. that trust devolves on the Senate. . Ohio twenty-one. with a decided majority of the people against him. This is done in express terms. en masse. can countervail the concurrent and opposing action of the majority. Kentucky fourteen. These seven States can give a majority of all the votes. consistent with the true principles of free representative government. as before remarked. North Carolina fifteen. be applied. would adhere to it as equally safe and necessary in every other. concurring in the same vote. with respect to the same public trust. by the provisions of their compact. who are to choose from the two highest candidates.21 For example. This is precisely the rule which prevailed in the ordinary legislation of that body. is removed by another provision of the Constitution touching this subject. by which a minority of those to whom. There is a strict fitness and propriety in this. two-thirds of the States must be present by their representatives. a President may be constitutionally elected. New York has forty-two votes. as such. But if those Colleges should fail to elect a Vice-President. Nay. so far as the action of the Electoral Colleges is contemplated. in the election of the President by the House of Representatives. there is every just reason to suppose. against him. and South Carolina fifteen. it is difficult to imagine a case in which a majority of those people. Pennsylvania thirty. and. under the Articles Confederation and which proved its federative character as strongly as any other provision of those articles. If no candidate should receive a majority of votes in the Electoral College. Virginia twenty-three. properly agree. instead of by the States. however. in this respect. On the contrary. every executive trust devolves on him. Here the federative principle is distinctly seen. the same general principle should. This view of the subject is still farther confirmed by the clause of the Constitution relating to impeachments. as the above example shows. or one of them. in the election of both of them. and a majority of all the States being necessary to a choice.
as such. in that act. it is not unreasonable to conclude. that the convention considered that the same power would act in both cases." and not by the States. it is necessary to call again into life and action those very State sovereignties which were supposed to ." This secures the States against any action upon the subject by the people at large. In order to perform this essential function. the States alone can perform that act. those same people can neither alter nor amend that government. whether three-fourths of them do concur or not? By what power can the necessary arrangement upon this point be effected? In point of fact." It is remarkable that. The Judiciary. and the approval and confirmation of them depend on those who are the exclusive representatives of the States. it is equally so in the power of amendment. as part of this Constitution. then. If the people of the United States. whether Congress or the States act upon the subject. truly wonderful that no mode has yet been prescribed to ascertain. Three-fourths of the several States can alone do this. amendments have already been made. in any form whatever. "on the application of the legislatures of two-thirds of the several States. could ratify amendments. Congress may call a convention for proposing amendments." It is the act of adoption or ratification alone which makes a constitution. Thus the nominations are made by a federate officer. In like manner. and the politicians of his school. as the one or the other mode of ratification may be proposed by Congress. strictly federative. Congress may propose amendments. but acting in their several States. in strict conformity with this provision of the Constitution. or by conventions in three-fourths thereof. As the Constitution is federative in the structure of all three of its great departments. "whenever two-thirds of both houses shall deem it necessary. We ask our author. in its structure. that the Constitution was formed by "the people of the United States. This agency is manifestly federative. Is it not. whether they adopted the one mode or the other. And yet. From this. by any form of words. whether three-fourths of the people of the United States concurred in those amendments or not. and "the people of the United States" cannot mingle in it. to a certain extent. when ratified by the legislatures of three-fourths of the several States. to wit: the power of the States. then the very language of the Constitution requires that three-fourths of them shall concur therein. and gives no pretext for double construction. that the Executive Department is.It is believed to be neither a forced nor an unreasonable conclusion from all this. who might effect their object either by their separate action as States. The amendments thus proposed "shall be valid to all intents and purposes. but. The language of the Constitution admits of no doubt. their common federative agent. — The Judges are nominated by the President. and that the government established was emphatically the government of the people of the United States. not less than two-thirds of them should be authorized to act efficiently. this clause relating to amendments presents a singular anomaly in politics. and if they did. as one people. Their idea is that the State sovereignties were merged. It is not the people of the United States in the aggregate. or by the action of Congress. In the case before us. not less than two-thirds of either being authorized to act. merely acting in their several States. who can ratify amendments. the same proportion is required. be correct in the idea. The idea of separate and independent political corporations could not be more distinctly conveyed. whence does he derive the proof of it? If Judge Story. and approved by the Senate.
Much emphasis has been laid upon this word. and so jealous were they of every attack upon it. by the very act of creating the instrument which they are required to amend. a common government. But whether ours is a "government proper. the formation of a constitution of government is that which admits and implies. So long. does not disprove its federative character." which I presume implies that it is a government in a peculiarly emphatic sense. CHAPTER IX. the most distinctly and to the fullest extent. by compact. by one distinguished statesman of Judge Story's school. Neither is our Constitution to be deemed the less federative. So strongly were the States attached to that perfect equality which their perfect sovereignty implied. includes within it the right of the State to subject its own citizens to the action of the common authority of the confederated States. In what respect. with powers as extensive and supreme as any sovereign people can confer on a government established by themselves. that ours is "a government proper. does not prove that it is not a confederation. . and it even has been thought. Nothing is a government which is not properly so. For myself. since that very sovereignty in the States. can it justly be called a consolidated or national government? Certainly. unqualified. I confess that I do not very clearly discern the difference between a government and a government proper. therefore. the existence of absolute. and unlimited sovereignty. federative in the power by which alone it can be altered or amended. independent and sovereign will of each State. To alter or amend a government requires the same extent of power which is required to form one.be merged and dead. of the federative character of the Constitution. And.22 The object of the preceding pages has been to show that the Constitution is federative. in any form which may seem proper to itself. an absolute negative upon all the rest. against the possibility of overthrow. I leave it to the advocates of that doctrine to show. In what other particular ours is a consolidated or national government. of all political acts. it is authorized to act directly on the people. in the power which framed it." and one effective for all the legitimate purposes of government. as to so much. which provides that no amendment shall be made to deprive any State of its equal suffrage in the Senate. but this they refused to entrust. giving to each. is still farther confirmed by that clause of the article under consideration. federative in the power which adopted and ratified it. in particular cases." or only a simple government. in its own case. a new government. and whatever is properly a government is a government proper. I am unable to discover why States. as the power of amending the Constitution rests exclusively with the States. The idea which I am endeavoring to enforce. by an express provision of the Constitution. without its own consent. for every alteration or amendment is. because it was the object of those who formed it to establish "a government. it is idle to contend that they are less sovereign now than they were before the adoption of that instrument. federative in the power which sustains and keeps it alive. that they guarded it. and federative in the structure of all its departments. unconditional. except to the separate. the mere fact that. then. unless it be true that a confederation cannot be a government. All other rights they confided to that power of amendment which they reposed in three-fourths of all the States. absolutely sovereign. may not create for themselves. which a confederation implies.
I shall endeavor to meet it in all its parts. So far. are the supreme law of the land. we should understand by them a tribunal having lawful cognizance of a subject. or interpreter in constitutional controversies?" The fourth chapter of this division of Judge Story's work is devoted to this inquiry. it is the "final" judge or arbiter. and. to which he has arrived. Before we enter upon this investigation. the question whether it be constitutional or not. the court cannot enforce it. The Constitution. whether the jurisdiction which it exercises be legitimate or usurped. as given by the Supreme Court. shows that he attached a just importance to it. nor are there any means therein of resisting its authority. What. Its general outline is this: It is within the proper function of the judiciary to interpret the laws. and therefore it is within the proper function of the judiciary to interpret the Constitution. and all laws made in pursuance thereof. of course. therefore. The terms "constitutional controversies" are still more indefinite. it is the province of the federal judiciary to interpret the Federal Constitution." the Supreme Court of the United States is the final umpire. We come now to a more particular and detailed examination of the question. and does not strike me as being particularly forcible. the final judge or arbiter. there can be no difficulty in admitting that the decisions of the Supreme Court are final and conclusive. creates no other court of superior or appellate jurisdiction to it. it is proper to place the proposition to be discussed in terms somewhat more definite and precise than those which the author has employed. it has a right to decide. Every controversy which is submitted to the decision of a judicial tribunal. "Who is the final judge. whether State or federal. If the law be not constitutional. The very act of enforcing a law presupposes that its constitutionality has been determined. final and conclusive. as the Federal Constitution has provided for the subject at all. whether it be a question of the law or of the Constitution. and the elaborate examination which he has given to the subject. Without deeming it necessary to follow him in the precise order of his argument. necessarily involves the constitutionality of the law under which it arises. In this sense. and that the States. every court. as well as individuals.EXTENT AND LIMITS OF THE JURISDICTION OF THE SUPREME COURT OF THE UNITED STATES. too. necessarily arises in every case to which the court is asked to apply it. in the progress of this examination. His conclusion is. are obligatory. the Constitution is the supreme law. which creates the Supreme Court. of course. The conclusion. the interpretations of that Constitution. the Supreme Court is. consequently. therefore. beyond question. and this. ." There is no power in the same government to which that court belongs to reverse or control it. and no other tribunal can reverse its decision. In this view of the question. its decisions are strictly "final. Whatever comes within the legitimate cognizance of that tribunal. "in all questions of a judicial nature. and from whose decisions there is no appeal. His reasoning upon this part of the subject is not new." arising in causes before it and if there be no appeal from its decision. however. that. And as that Constitution. anything in the laws or constitution of any State to the contrary notwithstanding. is meant by "final judge and interpreter?" In the ordinary acceptation of these terms. whether State or federal. is the "judge or arbiter of constitutional controversies. are absolutely bound by its decisions. then. leaves still unsettled the most difficult and contested propositions which belong to this part of the Constitution. in the sense already expressed. and. upon the people and the States.
as independent. to controversies between two or more States. for it would be a strange anomaly. under their authority. Cases "arising under the Constitution" are those in which some right or privilege is denied. other public ministers and consuls to all cases of admiralty and maritime jurisdiction to controversies to which the United States shall be a party. and. by the Constitution itself. confederated States. however. made under the authority of the United States. as a part of the Federal Government. Treaties are made under the common authority of the States. citizens or subjects. equally conclusive. and the treaties made. The federal tribunals cannot take cognizance of any case whatever in which all the States have not an equal and common interest that a just and impartial decision shall be had." It will be conceded on all hands that the federal courts have no jurisdiction except what is here conferred. to all cases affecting ambassadors. It is remarkable that no power is conferred except what is absolutely necessary to carry into effect the general design. Cases arising under treaties. or by citizens and subjects of any foreign State. between citizens of the same State. which result from the legislation of Congress. which the Constitution confers." could not properly be entrusted to any other than the federal tribunals. Beyond these "cases" and these parties they have no jurisdiction. and the parties between whom alone jurisdiction can be entertained. There is no part of the Constitution in which the framers of it have displayed a more jealous care of the rights of the States. and could produce nothing but disorder and confusion. to confer on a government the power to make a law. derives its powers only from the Constitution which creates that government. and between a State and the citizens thereof. or something is done which the Constitution prohibits. between a State and citizens of another State. and . The term "cases" implies that the subject matter shall be proper for judicial decision. and those "affecting ambassadors and other public ministers end consuls. as expressed in the Constitution itself.Let us now inquire what "constitutional controversies" the federal courts have authority to decide. A brief analysis of the provisions of the Constitution will make this sufficiently clear. of course. are specifically enumerated. The judiciary. arising under this Constitution. and how far its decisions are final and conclusive against all the world. and foreign States. or which shall be made. and accomplish the general object of the States. if there were no other. they ought to be entrusted to the common tribunals of all the States. There is another reason. between citizens of different States. without conferring at the same time the right to interpret and the power to enforce it. The third article of the Constitution provides that "the judicial powers shall extend to all cases in law and equity. than in the limitations of the judicial power." The eleventh amendment provides that "the judicial power of the United States shall not be construed to extend to any suit in law or equity. Those which arise "under the laws of the United States" are such as involve rights or duties. claiming lands under grants of different States. the laws of the United States. Cases of these kinds are simply the carrying out of the compact or agreement made between the States. all the States are alike interested in them. For this reason alone. commenced or prosecuted against one of the United States by citizens of another State. The judicial should always be at least coextensive with the legislative power.
But it is to be remarked. in the frame of the Constitution. which the new relation between the States established by the Constitution rendered absolutely necessary. This brief review of the judicial power of the United States. on the good faith with which its duties in reference to these subjects are discharged. or those affecting the citizens of a foreign State. it would be altogether incongruous to appeal to a State tribunal. Yet. All the States are alike bound to render justice to foreign States and their people. and therefore are presumed to form the only fair and impartial tribunal between them. all the States have a deep interest that an impartial tribunal. and not an unfruitful cause of war. in whatever form such controversies. and the harmony of its relations with foreign powers. she can appear in our courts only as plaintiff. in a peculiar degree. Hence it would be unsafe to entrust them to any other than their own control. as given in the Constitution. and with what caution it has been restricted to those cases. The peace of the country. Ambassadors and other public ministers and consuls are received under the common authority of all the States. of course. and as the States have. only. The denial of justice is a legitimate. be sued. may arise. and this common responsibility gives them a right to demand that every question involving it shall be decided by their common judicatory. but one equally affecting the common rights and interests of all the States. For like reasons. and their duties relate only to matters involving alike the interests of all. should be provided. could not be entrusted to the tribunals of any particular State interested. belong only to her own courts. alike. the jurisdiction of the federal courts is clear and undoubted. that they are bound only by their agreement. The same reasoning applies to cases between citizens of the same State. against those of the sister State. to enforce the rights. and even if this were not so.all. depend on a different principle. depend. and to compel their people to like submission. Cases of this sort involve questions of the sovereign power of the States. There would be neither propriety nor justice in permitting any one State to decide a case in which all the States are parties. upon general principles. without danger of injustice and partiality. Controversies between a State or the citizens thereof. and foreign States. for the question before us does not render any such analysis necessary. they are bound to do so. claiming lands under grants of different States. agreed to submit to the exercise of this jurisdiction. where the State is plaintiff — (it cannot be sued) — and between citizens of different States. are bound for the faithful observance of them. cases of admiralty and maritime jurisdiction are properly entrusted to the federal tribunals. be entrusted to the decision of either of them. In like manner. They are under no . satisfactory to the foreign party. in these cases. are the common courts of all the parties. is not offered as a full analysis of the subject. the obligations or the duties of the United States. they all have a common interest to withdraw from the State tribunals a jurisdiction which may bring them within the danger of that result. The jurisdiction in this case is given upon the same principles which give it in cases between two or more States. In all the cases above supposed. interested as it would be to sustain its own acts. By design has been only to show with what extreme reserve judicial power has been conferred. those between two or more States — between a State and citizens of another State. or whose citizens are interested therein. Jurisdiction is given to the federal courts. A foreign State cannot. and not beyond it. and could not. Controversies to which the United States shall be a party should. citizens or subjects. As no State can be involved in war without involving all the rest. with any show of propriety. simply because they are equally interested for all the parties.
or to the people. they acted as independent and sovereign States. therefore. which are possessed by all the States together. The Constitution of the United States is but the agreement which each State has made. Now we can form no idea of any power possessed by a State as such. and there is no power in the Federal Government to gainsay it. There is. nor to those between parties not responsible to its jurisdiction. it must of course be the judge of its own powers. for ignorance or corruption. to each State separately and distinctly. are those reserved powers? Not the powers. is to decide this point? Shall the Supreme Court decide for itself. in the principle we are examining. The tenth article of the Amendments of the Constitution provides that "The powers not delegated to the United States by the Constitution. nor prohibited by it to the States. Every power so reserved. may assume jurisdiction over subjects and between parties. and the reservation above quoted is an admission that in performing that work. a sovereign power. which powers and objects are enumerated in the Constitution. in this respect. that if the judiciary be the sole judges of the extent of their own powers. so far. with each and all the other States. that is. entrusted with limited powers for certain specific objects. there is nothing to prevent them from interpreting in favor of any power which they may claim. It is not a party to the Constitution. so far as those authorities are concerned. Shall the agent be permitted to judge of the extent of his own . and so distinguishable. and.obligation to submit to the decisions of the Supreme Court. If it be a court of the last resort. then. Each State. as those powers are derived from the Constitution and as the judges are the interpreters of the Constitution. is apparent from the fact already stated. are not only reserved against the Federal Government in whole. unless it has clearly waived that right in favor of another power. but against each and every department thereof. and the enumeration in the Constitution is idle and useless. without the least reference to responsibility to any other State whatever. It is incident to every sovereignty to be alone the judge of its own compacts and agreements. for the reservation is to "the States respectively". are reserved to the States respectively. in fact. and against all the world? It is admitted that every court must necessarily determine every question of jurisdiction which arises before it. in its nature. therefore. But it is still farther apparent from the following view: The Federal Government is the creature of the States. which is not. We have already seen that the Constitution of the United States was formed by the States as such." The powers thus reserved. then. would not invalidate their decisions already pronounced. for. The judiciary is no more excepted out of the reservation than is the legislature or the Executive. its decision is necessarily final. therefore. not allowed by the Constitution.23 Who. their powers are universal. has a right to interpret that agreement for itself. It is a mere agent. No other State or assemblage of States has the least right to interfere with it. then. on subject matter not properly cognizable before it. Is there. to the powers of its own judiciary. but the result of it — the creation of that agreement which was made by the States as parties. Even the impeachment and removal of the judges. must be of such a character that each State may exercise it. if any such there be. which belong to the same system of government with itself. from any other agreement between sovereign States. in any constitutional government. Of what nature. That the right is not waived in the case under consideration. no redress? The Constitution itself will answer this question in the most satisfactory manner. and independent of every other State. and cannot do so without impairing its sovereignty. no absolute and certain limitation. The Supreme Court.
and no State can have any interest to dispute it. notwithstanding the plainest and most express terms of the grant. No such language can be found in our Constitution. whether it had agreed to the exercise of such a jurisdiction or not. That government at least would have no right to complain of the decisions of an umpire which it had chosen for itself and endeavored to force upon the States and the people. but for the other departments also. with what propriety can it be said that a single department of that government may do so? Nay. If then the Federal Government has no authority to judge. it is enough to disprove the existence of any rule. Whenever such a case arises. without reference to his constituent? To a certain extent. it may pronounce them either less or more than they really are." the decisions of those courts. those affecting foreign ministers." But a construction so latitudinous will scarcely be contended for by any one. and. from which the rule can be supposed to be derived. . such. a written constitution would be the idlest thing imaginable. inconsistent with private right. the result would be. and between those parties.powers. It would afford no barrier against the usurpations of the government. the Federal courts have cognizance of it. that the agent would possess every power which the constituent could confer. or it might confer on them powers never conceded. to show that such consequences as these will result from it. he is compelled to do this. ought to be considered as final and conclusive. &c. in the very teeth of the eleventh amendment. Nothing short of the plainest and most unequivocal language should reconcile us to the adoption of such a rule. therefore. in the very act of exercising them. and dangerous to public liberty. that they had jurisdiction. enumerated in the Constitution itself. In construing the powers of a free and equal government. extremely careful not to interpose their sovereign power against the decisions of the Supreme Court in any case where that court clearly has jurisdiction. but this is always in subordination to the authority by whom his powers were conferred. Considering the nature of our system of government. The State would be under no obligation to submit to such a decision. would certainly not settle the Constitution in that particular. Thus a single department might deny to both the others salutary powers which they really possessed. This is an absurdity as pernicious as it is gross and palpable. and which the public interest or the public safety might require them to exercise. as those between two States. The decisions of the Supreme Court. Every right may be said to be a constitutional right. the States ought to be. every remedy to enforce those rights presents "a case arising under the Constitution. in the last resort. The clause under consideration gives jurisdiction only as to those matters. take jurisdiction of cases "commenced or prosecuted against one of the States by citizens of another State. but the right to decide a case arising under the Constitution. The only clause. of the extent of its own powers. does not necessarily imply the right to determine in the last resort what that Constitution is. it is said that this department may not only judge for itself. If such a rule would prevail in regard to government. and it would resist it by virtue of its sovereign right to decide for itself. but this clause is clearly not susceptible of any such construction. because no right exists which the Constitution disallows. If the Federal courts should. is that which confers jurisdiction in "all cases arising under the Constitution. those of admiralty and maritime jurisdiction. and the laws made in pursuance thereof". This would be against all principle and all reason. and I presume always will be. and no security for the rights and liberties of the people. for example. As to all these subjects the jurisdiction is clear. Of this character are the cases already cited at the commencement of this inquiry. If the judiciary may determine the powers of the Federal Government. If this were not so. consequently.
. his only relief is by an appeal to his own State. their decisions are final. therefore. and it is not easy to imagine by what contrivance it could be brought before a court. what course would be pursued? Congress might. except so far only as his own State has commanded him to do so. and he has. but whether or not she ever consented that Congress should pass the law. but which could not possibly be presented to the courts. A great variety of cases are possible. So far as the federal tribunals have cognizance of such cases. As between these parties the federal tribunals have no jurisdiction. If the constitutionality of the law under which the case arises. which. the court has authority to decide it. a perfect right to ask his State whether her commands extend to the particular case or not. however. Most questions of mere political power are of this sort. indeed. between a State and the United States. His State may interpose in his favor or not. not at that of any other State. should be against the United States. If the decision should be against the citizen. He does not ask whether the federal court has interpreted the law correctly or not. The question is then between new parties. and." What is a republican form of government. in any other judicial proceeding. it is. be an odd way of settling the rights of nations. and between the United States and the citizen. And suppose that the State should refuse to do so. because a State cannot be sued by the United States. in a federal court. If Congress had such power. therefore. if she does. as to this matter. and not a judicial question. If she does not. it provides no common umpire to whose decision they can be referred. The following are examples: By the 4th section of the 4th article it is provided that "Congress shall guaranty to every State in the Union a republican form of government. than it is no longer a judicial question. for the decision of the highest federal court is final. the Constitution confers no jurisdiction on the federal courts. some of which are not unlikely to arise. on the ground that it had already complied with the requisitions of the Federal Constitution in that respect? Could Congress direct an issue to try the question at the bar of the Supreme Court? This would. Its decision. it has never surrendered to any other tribunal. determine that the constitution was not republican. and there is no relief for the parties. the State must of necessity decide for itself. He is under no obligation to submit to federal decisions at all. if Congress had not such power. which cannot assume a proper form for judicial investigation. of course. If the decision. it is a political. Suppose a State should adopt a constitution not republican. in a controversy between the United States and a citizen. then he is oppressed by the action of a usurped authority. there is no longer a common umpire to whom the controversy can be referred. is binding upon itself and upon its own people. arising in the same way. But there are also cases between citizen and citizen. then there is an end of the matter. who are not bound by the former decision. State and federal. As to these. There are. whatever it may be. and how shall the question be decided? In its very nature. The State must of necessity judge for itself.and it would be a breach of the contract on the part of any State to refuse submission to them. by resolution. arising under the laws of the United States. sovereign power and authority. In such cases. involving the true construction of the Federal Constitution. who would be parties to the issue? at whose suit should the State be summoned to appear and answer? Not at that of the United States. of course. and direct the State to form a new one. should come into question. and no farther. in a form proper for their decision. final and conclusive. as she may think proper. many cases involving questions of the powers of government. and determining the extent of their powers! Besides. he has no relief. and such are all questions between a State and the United States. nor of any individual citizen. and has a right to look to his own State for redress. by virtue of that inherent. in the opinion of Congress.
So far as they may claim the force of authority. or the laws and Constitution of the State allowing it. each State must. that no parties could be found authorized to present the issue. It would involve a mere question of political power — the question whether the act of Congress forbidding slavery." How could this matter be brought before the Supreme Court? And even if properly brought there. And so in our own systems. I can see in the federal courts nothing more than the ordinary functions of the judiciary in every country. in whatever form or between whatever parties it might arise. . This is certainly not impossible. except between the parties litigant and their privies. for the reasons already stated. as between the State and Federal Governments. and against the States and their people. how could its sentence be executed? Again. enlarge or contract the powers of their own governments. in all cases of which the Supreme Court can take cognizance. although it would be the grossest and most palpable violation of the rights of the slaveholder. they are not conclusive. should prevail. and still less under that of the federal courts. but their decisions are not binding. to all purposes. Again. Congress has authority "to provide for organizing. the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress." which could not possibly be brought under the cognizance of any judicial tribunal. and for governing such part of them as may be employed in the service of the United States. and even if it did. respectively. It is obvious that the case does not present proper subject matter for judicial investigation. suppose that Congress should enact that all the slaves of the country should immediately be free. and certainly are not so beyond the sphere of their own government." They involve the mere question of political power. as generally understood. There is no case in which a judicial question can arise. and frequently do. It is this sweeping conclusion which it has been my object to disprove.because they are not concerned in the question. except so far only as the parties themselves were concerned. yet they can never enlarge or contract those of other governments. and I fear not even improbable. These examples are sufficient to show that there is a large class of "constitutional controversies. be its own "final judge or interpreter. reserving to the States. or the State should insist on training the militia in their own way. arming and disciplining the militia. Although the Judiciary may. and that the parties to it could not be convened before the Supreme Court. of necessity. its decisions are final. even upon those who pronounce them. admits that no court can decide any question which is not susceptible of a proper form for judicial enquiry. for the simple reason that other governments are not bound by their decisions. and the fact that they are clearly withheld from the jurisdiction of the Supreme Court. and absolutely binding and conclusive in all respects. This would certainly produce the most direct conflict between the State and Federal Governments." Suppose that Congress should usurp the right to appoint the militia officers. goes far to prove that the States in framing the Constitution did not design to submit to that court any question of the like kind. And yet it is manifest that it presents no subject matter proper for judicial decision. therefore. and not "according to the discipline prescribed by Congress. Judge Story himself does not contend that the Supreme Court is the "final judge or interpreter" in all cases whatsoever. But he contends that. he. It is their proper province to interpret the laws. of course. As to these cases.
Sovereign nations do not ask their judges what are their rights. They will be admonished of their responsibility to the power which created them. certainly. at the mercy of a single department of the Federal Government. Thus the powers of the State governments. and. It is true. are altogether unworthy of its importance. so long as they desire the continuance of their present union. and least of all. They are but an emanation of the sovereign power of the States. a proper corrective is always found in the people themselves. of course. they will feel themselves bound. A decision of the Supreme Court might arrest a State in the full exercise of an important and necessary power. since they have shown in every part of their compact with one another. that in this case. Ordinarily. might be kept indeterminate and constantly liable to change. there is no other guarantee. The States created them. the most jealous care of their separate sovereignty and independence. stare decisis. and can neither limit nor control that power. But that power is not with the aggrieved State alone. which a previous decision of the same court had ascertained that she possessed. but they interpret in subordination to the power which created them. their own decisions are not held to be absolutely binding upon themselves. and it is not to be doubted that. upon which we have hitherto considered the subject. then. it will be strictly observed. except their mere existence. as to many important objects. So far as it is plain. Still less do they entrust these important subjects to judicial tribunals not their own. the judiciary are the proper interpreters of the powers of government. not with the Federal Government. and how far that agreement extends. as national faith and honor require. in every case which comes plainly within their agreement. It would have been a gross inconsistency in the States of our Union to do this. So far as it is not plain. This principle has frequently been asserted by the States. to the tribunals of that power against which their own power is asserted. if the federal courts be allowed to fix the limits of federal power with reference to those of the States. nor do they limit their powers by judicial precedents. And even if she could command it. and forfeit all title to confidence and respect. too. there is a possible corrective in the power to amend the Constitution. It would place every thing in the State governments.before a federal court. a ready remedy is found in an amendment of the Constitution. the process would be too slow to afford effectual relief. In governments established by an aggregate people. There is no necessity to call in the aid of the Supreme Court to ascertain to what subjects. Upon what principle. are the States bound by the decisions of the federal judiciary? Upon no principle. It is true they have agreed to be bound by the decisions of federal tribunals in certain specified cases. but with one another. except that. and always successfully.24 But these mere technical rules. it could be exerted only in connection with other States. as to certain subjects. They may establish a right today and unsettle it tomorrow. they have agreed to be so bound. But this agreement they made in their character of Sovereign States. whose aid she might not be able to command. It is impossible to imagine that any free and sovereign State ever designed to . or so far as it may be the will and pleasure of any State to deny or to resist it. and far beneath its dignity. As sovereign States. they are to determine whether or not they have given the federal courts authority to bind them in any given case. The maxim. the utter impotency of courts of justice to settle the difficulty will be manifested beyond all doubt. between a State and the Federal Government. If the judicial interpretation confer too much or too little power on the government. such as are those of the States. is not always adhered to by our courts. they alone are to determine the nature and extent of that agreement. so that they would lose their efficiency. But in our federal system the evil is without remedy.
or ever meant to authorize any other power to reduce her to a situation so helpless and contemptible. as will presently be shown. that the inferences deduced from it cannot be allowed. in all cases where its language is doubtful. we cannot safely or wisely repose in it the vast trust of ascertaining. As that rule cannot apply. that doubtful words are to be taken most strongly in favor of the powers of the Federal Government. from which the following may be deduced as consequences." It is the acknowledged basis of all federal power and authority. according to their free pleasure and sovereign will. also. as in every other constitution of government. and they do not. require any particular examination." All these are but inferences from the great rule which he first laid down. In this respect. and is to be construed as such. it would undoubtedly exert an important influence. Government is regarded merely as the agent of those who create it. to wit. what is this fundamental law. and that from which he deduces many others as consequences. Judge Story supposes that the Constitution of the United States ought to receive as favorable a construction as those of the States. and that there is "no solid objection to implied powers. But all this leaves the enquiry still open. that this frame or fundamental law of government was established by "the people of the United States. established by the people of the United States. The principal one. the sole chart by which federal officers are to direct their course. in that respect. "a fundamental law.surrender her power of self protection in a case like this. and subject in all respects to their will. they shall receive a more particular consideration under the present enquiry. therefore.25 Yielding. Let us now follow the author in the enquiry. established by the people of the United States. and would go far to justify his construction of the Constitution. what is the course indicated by the chart of federal power. it is in no wise distinguishable from the constitutions of the State governments. which has just been finished. we learn. This is the leading and fundamental rule. In the States the sovereign power is in the people of the States respectively. independent and sovereign States. According to the principles of all our institutions. distinctly and without doubt. that the Constitution was not established by "the people of the United States. consequently." If the fact were really so. and the sovereign power of the United States would. neither State nor federal. It is to be construed strictly. by what rules shall the Constitution be interpreted? Many of those which he has given are merely such as we apply to every instrument. It is. to the Supreme Court all the jurisdiction and authority which properly belongs to it." That our Constitution is "a frame of government" will scarcely be denied by any one. is this: "It is to be construed as a frame or fundamental law of government. the constitutions of the States. that it is to be liberally construed. sovereignty does not reside in any government whatever. as a necessary consequence. for the . as to require that they should be construed by the same rules. and this. From that enquiry. and how is it to be ascertained? Judge Story seems to suppose that a full answer to this question may be found in the fact. according to their own free pleasure and sovereign will. The Constitution of the United States is to be considered as a compact or confederation between free." and. because the fact on which it was founded is not true. that it does not resemble. Nevertheless. There is no such analogy between them. whether it be in its nature federal or consolidated. that the Constitution is to be considered as a frame of government. therefore. defining or limiting the sovereign powers of the States. it would seem to follow. We here discern the usefulness and necessity of that historical enquiry.
same reason, be in "the people of the United States," if there were any such people, known as a single nation, and the framers of the Federal Government. We have already seen, however, that there are no such people, in a strict political sense, and that no such people had any agency in the formation of our Constitution, but that it was formed by the States, emphatically as such. It would be absurd, according to all principles received and acknowledged among us, to say that the sovereign power is in one party, and the power which is in the government is in another. The true sovereignty of the United States, therefore, is in the States, and not in the people of the United States, nor in the Federal Government. That government is but the agent through whom a portion of this sovereign power is exerted; possessing no sovereignty itself, and exerting no power, except such only as its constituents have conferred on it. In ascertaining what these powers are, it is obviously proper that we should look only to the grant from which they are derived. The agent can claim nothing for itself, and on its own account The Constitution is a compact, and the parties to it are each State, with each and every other State. The Federal Government is not a party, but is the mere creature of the agreement between the States as parties. Each State is both grantor and grantee, receiving from each and all the other States precisely what, in its turn, it concedes to each and all of them. The rule, therefore, that the words are to be taken most strongly in favor of the grantee, cannot apply, because, as each State is both grantor and grantee, it would give exactly as much as it would take away. The only mode, therefore, by which we may be certain to do no injustice to the intentions of the parties, is by taking their words as the true exponents of their meaning. Judge Story thinks, however, that a more liberal rule ought to be adopted, in construing the Constitution of the United States, because "the grant inures solely and exclusively for the benefit of the grantor himself"; and therefore he supposes that "no one would deny the propriety of giving to the words of the grant a benign and liberal interpretation." Admit that it is so, and it would seem to follow that "the benefit of the grantor" requires that we should take from him as little as possible, and that an "interpretation of the words of the grant" would not be "benign and liberal" as to him, if it deprived him of any more of his rights and powers, than his own words prove that he intended to relinquish. It is evident that this remark of the author proceeds upon the leading idea, that the people of the United States are the only party to the contract; an idea which, we have already seen, can by no means be justified or allowed. The States are parties; each agreeing with each, and all the rest, that it will exercise, through a common agent, precisely so much of its sovereign rights and powers, as will, in its own opinion, be beneficial to itself when so exercised. The grant "inures to the sole and exclusive benefit of the grantor"; and who but the grantor himself shall determine what benefit he had in view, and how far the grant shall extend, in order to secure it? This he has done, in the case before us, by the very terms of the grant. If you hold him bound by anything beyond those terms, you enable others to decide this matter for him, and may thus virtually abrogate his contract, and substitute another in its place. I certainly do not mean to say, that in construing the Constitution, we should at all times confine ourselves to its strict letter. This would, indeed, be sticking in the bark, to the worst possible purpose. Many powers are granted by that instrument, which are not included within its express terms, literally taken, but which are, nevertheless, within their obvious meaning. The strict construction for which I contend, applies to the intention of the framers of the Constitution; and this may or may not require a strict construction of their words. There is no fair analogy as to this matter between the Federal Constitution and those of the States, although the author broadly
asserts that they are not "distinguishable in this respect"; and this will sufficiently appear from the following considerations: 1. The entire sovereignty of each State is in the people thereof. When they form for themselves a constitution of government, they part with no portion of their sovereignty, but merely determine what portion thereof shall lie dormant, what portion they will exercise, and in what modes and by what agencies they will exercise it. There is but one party to such a government, to wit, the people of the State. Whatever power their government may possess, it is still the power of the people; and their sovereignty remains the same. So far, therefore, there is "no solid objection to implied powers" in a State constitution; because, by employing power in the government, you take no power from those who made the government. 2. As government is the agent and representative of the sovereign power of the people, the presumption is, that they intend to make it the agent and representative of all their power. In every frame of limited government, the people deny to themselves the exercise of some portion of their rights and powers, but the larger portion never lies thus dormant. In this case, therefore, (viz.: of a government established by an aggregate people), the question naturally is, not what powers are granted, but what are denied; and the rule of strict construction, if applied at all, should be applied only to the powers denied. This would have the effect of enlarging the powers of government, by limiting the restraints imposed on it. 3. As it is fair to presume that a people absolutely sovereign, and having an unlimited right to govern themselves as they please, would not deny to themselves the exercise of any power necessary to their prosperity and happiness, we should admit all fair and reasonable implications in favor of the government, because, otherwise, some power necessary to the public weal, might be dormant and useless. In these respects, there is no just analogy between the State constitutions and that of the United States. In the first place, the Constitution of the United States is not a frame of government to which there is but one party. The States are parties, each stipulating and agreeing with each and all the rest. Their agreement is, that a certain portion of that power which each is authorized to exercise within its own limits shall be exercised by their common agent, within the limits of all of them. This is not the separate power of each, but the joint power of all. In proportion, therefore, as you increase the powers of the Federal Government, you necessarily detract from the separate powers of the States. We are not to presume that a sovereign people mean to surrender any of their powers; still less should we presume that they mean to surrender them, to be exerted over themselves by a different sovereignty. In this respect, then, every reasonable implication is against the Federal Government. In the second place, the Constitution of the United States is not the primary social relation of those who formed it. The State governments were already organized, and were adequate to all the purposes of their municipal concerns. The Federal Government was established only for such purposes as the State government could not answer, to wit: the common purposes of all the States. Whether, therefore, the powers of that government be greater or less, the whole power of
the States, (or so much thereof as they design to exercise at all), is represented, either in the Federal Government or in their own. In this respect, therefore, there is no necessity to imply power in the Federal Government. In the third place, whatever power the States have not delegated to the Federal Government, they have reserved to themselves. Every useful faculty of government is found either in the one or the other. Whatever the Federal Government cannot do for all the States, each State can do for itself, subject only to the restraints of its own constitution. No power, therefore, is dormant and useless, except so far only as the States voluntarily decline to exert it. In this respect, also, there is no necessity to imply power in the Federal Government. In all these particulars, the Federal Constitution is clearly "distinguishable from the constitutions of the State governments." The views just presented support this obvious distinction, that in the State constitutions every power is granted which is not denied; in the Federal Constitution, every power is denied which is not granted. There are yet other views of the subject, which lead us to the same conclusion. The objects for which the Federal Government was, established, are by no means equal in importance to those of the State constitutions. It is difficult to imagine any necessity for a Federal Government at all, except what springs from the relation of the States to foreign nations. A union among them is undoubtedly valuable for many purposes. It renders them stronger and more able to resist their enemies; it attracts to them the respect of other countries, and gives them advantages in the formation of foreign connections; it facilitates all the operations of war, of commerce and of foreign diplomacy. But these objects, although highly important, are not so important as those great rights which are secured to us by the State constitutions. The States might singly protect themselves; singly form their foreign connections, and singly regulate their commerce, not so effectually, it is true, but effectually enough to afford reasonable security to their independence and general prosperity. In addition to all this, we rely exclusively on the State governments for the security of the great rights of life, liberty and property. All the valuable and interesting relations of the social state spring from them. They give validity to the marriage tie; they prescribe the limits of parental authority; they enforce filial duty and obedience; they limit the power of the master, and exact the proper duties of the servant. Their power pervades all ranks of society, restraining the strong, protecting the weak, succoring the poor, and lifting up the fallen and helpless. They secure to all persons an impartial administration of public justice. In all the daily business of life, we set under the protection and guidance of the State governments. They regulate and secure our rights of property; they enforce our contracts and preside over the peace and safety of our firesides. There is nothing dear to our feelings or valuable in our social condition, for which we are not indebted to their protecting and benignant action. Take away the Federal Government altogether, and still we are free, our rights are still protected, our business is still regulated, and we still enjoy all the other advantages and blessings of established and wellorganized government. But if you take away the State governments, what have you left? A Federal Government, which can neither regulate your industry, secure your property, nor protect your person! Surely there can be no just reason for stealing, by liberal constructions and implications, from these beneficent State governments, any portion of their power, in order to confer it on another government, which, from its very organization, cannot possibly exert it for equally useful purposes. A strict construction of the Constitution will give to the Federal
that it was the intention of the framers of the tenth amendment to leave "the question. The same result was doubtless expected from this amendment of the Constitution. for that reason." a construction as liberal as would be. have no motive to encroach on the Federal Government. doubtless intending by the word "fair. that there is not the least necessity to imply any new power in its favor. applied to any other frame of government. the power to provide a navy is not. It left free from doubt and unaffected the power of Congress to provide the necessary and proper means of executing the granted powers. we should incline. except only such as are expressly delegated: but in the Constitution the word "expressly" is omitted. To these views of the subject we may add. Its means of aggrandizing itself are so numerous. But if the word "expressly" had been used in the tenth amendment. on the contrary. if the omission can be otherwise satisfactorily accounted for. while it denied to the Federal Government every power which was not granted. it might be necessary to exert some power not enumerated. As the representative of all the States. It was contemplated that. the power to build a dry dock. in itself.Government all the power which it can beneficially exert. by the Constitution. but it loses all its force. confident that the Federal Government has always the inclination. it is wholly useless and out of place. The Constitution itself suggests that it should be strictly and not liberally construed. For example. an opportunity for these combinations. and always the means. it affords. Judge Story believes. the fact that it is found in the Constitution is sufficient proof that some effect was intended to be given to it. to the States. If this clause confers no additional faculty of any sort. therefore. not a real one. an apparent repugnance between the two provisions of the Constitution. has been delegated to one government or prohibited to the other. in its organization. and much dreaded and strenuously opposed by the other. that there is a natural and necessary tendency in the Federal Government to encroach on the rights and powers of the States. to depend upon a fair construction of the whole instrument". to maintain itself in all its just powers. jurisdiction and powers" are reserved. in favor of the States. whether the particular power which is the subject of contest. from this fact. at least. are reserved to the States and the people. but. There is no danger that the Federal Government will ever be too weak. to preserve the just balance between them. that "the powers not delegated to the United States." in the tenth amendment. There would have been. I admit. Congress shall have power to authorize the construction of them. but still sufficiently probable to give rise to embarrassing doubts and disputes. by which a majority of the States may oppress the minority. it would have created a very rational and strong doubt of this. In order. all that is necessary for her to possess. in executing the powers expressly granted. The tenth amendment provides. and all that its framers ever designed to confer on it. and no power to do so. and its temptations to do so are so strong. which was expected from the corresponding provision in the . in order to prevent that latitude of construction which was contended for by one of the great political parties of the country. and as to which some doubt might. against the spirit or even the letter of the Constitution. It was considered necessary. nor prohibited. be entertained. The Constitution provides that Congress shall have power to pass all laws which shall be necessary and proper for carrying into effect the various powers which it grants. as dry docks are necessary and proper means for providing a navy. even if they desired it. and is certainly not without plausibility. in every doubtful case. In the Articles of Confederation all "rights. Hence the necessity of omitting the word "expressly." There was a corresponding provision in the Articles of Confederation. The States. This argument is much relied on. which doubtless suggested this amendment.
he thinks sufficiently restrained by the additional word "proper. in effect. and nothing can be constitutionally done. Whether or not they are "requisite. of public . that the means shall be "constitutional and bona fide appropriate. Strictly speaking. then. The standards of political morality. for the removal of all uncertainty. These means are granted. And this brings us to the enquiry. unless they are excepted in the Constitution. but the conclusion which he draws from it cannot be so readily admitted." "immoral or contrary to the essential objects of political society. to a certain extent. more properly speaking. to the end. But it is merely a declaration. "If.Articles of Confederation. beyond that enumeration. In proportion as a power is liable to be abused. of course. without them. not implied. Every power which it can properly exert is a granted power. sovereign. that in regard to these incidental powers. unless it be done as a means of executing some one of the enumerated powers. that the Federal Government is absolutely unrestricted in the selection and use of the means of executing its own powers." "useful." In all this he is undoubtedly correct. some discretion must. or. a right to employ all the means requisite. and fairly applicable to the attainment of the end of such power." "fairly applicable to the attainment of the end of such power. and. that the means of carrying into execution. what are these incidental powers. as their own judgment and discretion are their only rule. it would be left under no restraint. but is to be understood in the sense of "convenience. correct and convincing. in any case whatever. All these are enumerated in the Constitution." says he." "requisite". definite and fixed rules upon the subject. in its nature. be left with the government. as component parts of it. "the grant would be nugatory. and by what rules are they to be ascertained and defined? The only source from which these incidental powers. and includes. and. or are contrary to the essential objects of political society. are included in the grant. it is that every power vested in the government is. The doctrine here is. nor is it a grant of any new power to Congress. as importing absolute and indispensable necessity. because that is the precise point at which the government is most apt to encroach." all these are questions which the government alone can decide. they are under no sort of limitation or control in these respects. of necessity. He contends that the word "necessary"' is not to be taken in its restricted sense. and the difference in the terms employed is but the necessary consequence of the difference in other provisions of the two systems. or are immoral. But there is at the same time." The dangerous latitude implied by this construction. are derived is that clause of the Constitution which confers on Congress the power "to make all laws which are necessary and proper for carrying into execution the foregoing powers. or in any department or officer thereof." His general reasoning upon the subject is very lucid. should we increase and strengthen the checks upon it. nugatory and useless. the Constitution allows no implication in favor of the Federal Government. those otherwise granted. and all other powers vested by this Constitution in the government of the United States." This is by no means a legitimate conclusion from his own fair and forcible reasoning. as being such that." which implies. and essential to every step of the progress to be made by that of the United States. except what is imposed by its own wisdom. except only so far as those means are excepted in the Constitution. a peculiar necessity that a strict construction should be applied to them. by force of the term. Without some strict." The true character of this clause cannot be better given than in the words of Judge Story himself: "It neither enlarges any power specially granted. integrity and good faith. without them. "there be any general principle which is inherent in the very definition of government. It is true. because the power would be imperfect. they are given as the necessary incidents of the power itself.
in supposing that the means of executing its powers are conferred on the government. then. in express terms. or to the people." The words in italics are all important. It is precisely this result which was intended to be prevented by the clause in question." Judge Story's idea is. the author's idea is correct. that every thing is excepted which is not granted. as our author supposes. The States were unwilling to entrust such a discretion either to the government. If they need the use of such means. and all means which are appropriate. He regards the tenth amendment as altogether unnecessary. butare consistent with the letter and spirit of the instrument. and far more dangerous. are quite too fluctuating and indeterminate to be relied on. it is exclusively a legislative power. they must apply to Congress to furnish them. by a free people. So far. and give to the passage a meaning wholly different from that of the passage first quoted. The power to make all laws necessary and proper for carrying into effect the granted powers is conferred on Congress alone. the more immediate representatives of the States and their people. and tells us. or to the several departments or officers thereof. sovereign. indeed. be implied in favor of every department and officer thereof. and includes. that the proposed means are "excepted" in the Constitution. and of conformity to the essential objects of society. as the government is concerned. or. by force of the term. nor prohibited by it to the States. it derives no power from this clause. Judge Story's error is equally great. All this is perfectly clear from the very language of the Constitution. If power could be implied in favor of such a government as ours. therefore. but it is not true in the application which he has made of it to our government. because they had the least temptation to abuse it. then. and it is discretionary with that body whether to furnish them or not. but this does not accord with the general scope of his opinions. it would. is that which may be found in the fact.convenience and necessity. in its nature. or by their . and the same is true of its several departments. The only real restriction. are reserved by the States respectively. or forbidden by some consideration of public morals. which the author proposes in the above passage. that it would render all the limitations of the Constitution nugatory and useless. They were willing to confer it on Congress alone. who would be most apt to discharge the trust properly. If the word "excepted" is to be understood in this sense. and reasoning. if nothing were add to the contrary. and which are not prohibited. "the powers not delegated to the United States by the Constitution. that every thing is granted which is not excepted. as he has stated it. that "every power in the government is. Let the end be legitimate. whereas. This would be a wide extent of discretion. on the legislative department. which are plainly adapted to the end. that the powers of the government would be exactly the same with or without it. for which it contends. This is a great and obvious mistake. The Federal Government possesses no power which is not "delegated". They have no discretion in the selection of any incidental means of executing their several trusts. and fairly applicable to the attainment of the ends of such power. are constitutional. it is not true of our system. to the execution of whose duties it might seem to be necessary. the language of the tenth amendment is express. He approaches much nearer to the true rule in the following passage. a right to employ all the means requisite. unless they are excepted in the Constitution. so wide. at least. in the matter. and this is directly contrary to the letter and spirit of that instrument. The tenth amendment was wisely incorporated into the Constitution for the express purpose of denying to the government that unbounded discretion in the selection and use of its means. as checks upon the powers of their rulers. let it be within scope of the Constitution. The general proposition is true. and the propriety of such a provision must be apparent to every one. It is not true.
but also to the general nature and character of our institutions. and the word "proper" was very happily selected. it therefore authorizes no means which are inconsistent with the distinct sovereignty of the States. and will deprive the Federal Government of many important powers which it has hitherto exercised. In the first place. if fairly and honestly observed. by making roads. cutting . if the purpose be lawful. appear to me to be obvious. It is not enough that the means adopted are sufficient to that and they must be adopted bona fide. which implies that it is also an equal government. we must have regard not only to the express provisions of the Constitution." In our government. It is not enough that there is no apparent unconstitutionality in the use of such means. It is. therefore. This word requires that the means selected shall be strictly constitutional. in the use of them. for. the confederating powers. In ascertaining this. means ostensibly provided for another to do so would be a positive fraud. in the particular case. will go far to remove many serious difficulties upon this point. by Judge Story. except such as are consistent with the spirit of liberty and equality. it is to be observed that Congress has no power under this clause of the Constitution. the absolute necessity of the rule. the means are at the disposal of one department only. limited and specifically enumerated. Congress may. the propriety of which all will admit. nevertheless. which may either grant or withhold them at its pleasure. I cannot hope that I shall be able perfectly to disembarrass it. some may be found equally calculated to effect. either by their direct or indirect action. and of marked difference of opinion. Congress has no right to use for the accomplishment of one purpose. among politicians. Ours is a government of "delegated" powers. with a view to accomplish it. indeed. for among the great variety of means adapted to carry out the granted powers. it would be susceptible of a very extended meaning." but they must also be "proper. What. and which are still claimed for it. If powers not granted might be used as means of executing the granted powers. without this check. of the utmost importance to the preservation of the true principles of the Constitution. the means provided must not only be "necessary. then.unsuitableness to the proper objects of government. This single rule. that strict faith should be kept upon this point. This is supposed by some to give them power to open channels of commerce. but I think. and if it be unlawful. it should not be accomplished at all. than. It was necessary. Ours is a free government. it therefore authorizes no means which involve. that there are a few plain rules. To illustrate this idea by an example: Congress has power to regulate commerce among the several States. it therefore authorizes the employment of no means for the execution of its powers. It is quite obvious that. If they involve a principle which will authorize the use of ungranted powers in any other case. they are forbidden by the Constitution. are the proper limitations of the power of Congress in this respect? This has always been a subject of great difficulty. to limit and restrain it by some other word. and which may materially aid us in the formation of a sound opinion upon the subject. The propriety and. it may be accomplished by its own appropriate means. by indirection. it is manifest that no power whatever could be considered as denied. any distinct substantive power. then. not granted. purposes of a wholly different character and tendency. except to provide the means of executing the granted powers. and the whole political world to which he belongs. accomplish almost any forbidden object. Ours is a confederated government." If the word "necessary" stood alone. In the second place. and a manifest usurpation. and would probably be considered as embracing powers which it never was in the contemplation of the framers of the Constitution to grant.
for I am unable to perceive that he . not granted to the United States. implies the power to locate it. Great and obvious injustice and inequality may at all times be avoided. or along the whole course of a State turnpike. as there is nothing to control the discretion of Congress in this respect. Such injustice and inequality would be but the necessary consequence of that imperfection. authorize them to run a road through the centre of a State capital. either in a moral or in a constitutional sense. It would be indeed an endless task to do so. that the power to make such a road. by the means also granted in the Constitution. These few simple rules are. which so often arise on this part of the Constitution. and to prevent the contests. but reserved to the States respectively. Let us suppose. that the opening of roads and cutting of canals are the very best means of facilitating and regulating commerce among the States. the supremacy claimed for the powers of Congress in this respect would. implies the power to keep it in repair: to impose fines and penalties on those who injure it. and without compensation. No "means" which involve these consequences can possibly be considered "proper". there is nothing to forbid them to locate their road. But when. We find that the power to open a road through a State. and a strictly impartial regard to their respective rights and interests. if Congress will observe good faith in the exercise of its powers. We find. which the word "proper" suggests. however. but a near approach to it will always be made by a wise and fair legislation. in their nature." and therefore none are constitutional which operate unequally and unjustly among the States or the people. Nay. those means would. we should unhesitatingly reject them as unconstitutional. perfect integrity and impartial justice. presents a rule which. also. nevertheless. if strictly adhered to in all analogous cases. consequently. arising under the clause of the Constitution we are examining. simple integrity is all that is required. or to cover half her territory with roads and canals. would go far to remove the difficulties. then. technical. It exacts of Congress an extended and fair view of the relations of all the States.canals etc. given by way of example and illustration. we are still to inquire what farther powers would be necessarily implied. to enforce those fines and penalties by the exercise of a jurisdiction over it. I have not thought it necessary to follow the author through his extended examination of what he terms the incidental powers of Congress. and. The improvements of individuals. too. and which. over which the State could exert neither jurisdiction nor control. and that there is nothing in the language of the Constitution to forbid it. against the consent of the State. There is another of a more enlarged and liberal character. through the territories of the States. that the means of regulating commerce among the States would necessarily imply these vast and forbidden powers. would thus be held at the mercy of the United States. and. It requires no high intellectual faculty to apply this rule. and may at all times be easily applied. But this is a substantive power in itself. and therefore is not allowed as a means of regulating commerce among the States. Congress are called on to prescribe new means of executing a granted power. and to which those who undertake to proscribe specific rules to themselves are bound to submit. be perfectly constitutional. Although the direct action of a granted power. upon the bed of a State canal. which characterizes every human institution. This single instance. When we see. may be both unequal and unjust. and of corporate bodies made under the authority of State laws. The effect of this would be to transfer to the United States. will render all others comparatively unnecessary. It in true that perfect and exact equality in this respect is not to be expected. if applied with sound judgment. upon the same principle.. as incidents of this. none are "proper. improvements made by the State within her own territory and at her own expense.
power and splendor. or impair the right of the legislature to use its best judgment in the selection of measures to carry into execution the constitutional powers of the national government. and as powerful as splendid. as to all such matters. yet less ostentatious purposes of the State governments. They desired neither a splendid pageant nor a splendid government. indeed." The consolidationists forget these wholesome truths. by a single clause. protection and safety. for the selection of those means. indeed. scarcely a case can be supposed. while none of the powers with which they had thought proper to clothe it should be nugatory. but they never designed to give it the boundless field of its own mere will. or a delusive phantom of sovereignty?" It was. to remove every available restriction upon the powers of Congress. in their eagerness to invest the federal government with every power which is necessary to realize their visions in a great and splendid nation. that "upon the whole. and betrayed them into the slough of despotism. in the exercise of all those functions of the Federal Government which concern our foreign relations. The tendency of their principles is to establish that legislative omnipotence which is the fundamental principle of the British Constitution. the object of the framers of the Constitution "to remove all possible doubt" from this subject. have always fallen a sacrifice and been the victims of their own folly. a sweep of authority. they never designed to involve themselves in the absurdity of removing." in this clause of the Constitution? Can Judge Story possibly be right in supposing that the Constitution would be the same without it as with it. While they acquired those visionary blessings. they lose sight of the more useful. it cannot be construed to restrain the powers of Congress. if that instrument be not a splendid pageant. On all such. the impressive warning of Patrick Henry." This is. the result of the most careful examination of this clause is. and seem to be unconscious that. They did not design that any power with which they thought proper to clothe it should be inoperative for want of means to carry it into execution. and that the only object of inserting it was "the desire to remove all possible doubt respecting the right to legislate on the vast mass of incidental powers which must be involved in the Constitution. with the same blind and devoted zeal. as to which any serious doubt can arise. nor to correct its errors. none of them should be executed by any means which were not both "necessary" and "proper.proposes any limit to them at all. that corrective can never be applied in behalf of an oppressed minority. They meant to assure their agent that. that if it does not enlarge. Indeed. Hence they do not discriminate between the several classes of federal powers. boundless and unrestricted. The powers of that government. whilst there is nothing to control that judgment. The "best judgment" of Congress is the only limit proposed to its powers. would be utterly lost: "Those nations who have gone in search of grandeur. in building up this huge temple of federal power. for even if a corrective be supposed to exist with the people. every restriction which they had previously imposed. Dazzled by these splendors. It is remarkable that. they necessarily destroy those less pretending structures from which alone they derive shelter. Having specifically enumerated its powers. Are the rules which I have proposed indeed nothing? Is no effect whatever to be given to this word "proper." The lovers of a strong consolidated government have labored strenuously. he tells us in so many words. are so . they lost their freedom. They knew that without this restriction ours would be both. and I fear with too much success. This is the ignis fatuus which has so often deceived nations. but contend for all of them. drawn from the lessons of all experience. requiring the aid of any implied or incidental power. They suffer themselves to be too much attracted by the splendors of a great central power. as far as was practicable. and which renders every form of written constitution idle and useless. Government is abandoned emphatically to its own discretion.
and an interest is created strong enough to carry all measures and sustain all abuses. the State governments. so defectively constructed. They are all such as the State governments are perfectly competent to manage. certainly. or is likely to arise. whatever power that government does not plainly possess. Looking upon government as a machine contrived only for the public good. without borrowing aid from any other source. he thinks it strange that it should not be supposed to possess all the faculties calculated to answer the purposes of its creation. In the exercise of those functions which the State governments are forbidden to exercise. and it will be found that our system will work out all the . naturally seeks to surround all our institutions with a gaudy pageantry. which. there is no absolute necessity that the Federal Government should possess any power at all. with powers at once ample and unquestioned. then. in aggrandizing the Federal Government. but the aggregate of their several and respective powers. then. which belongs only to aristocratic or monarchical systems. and in the exercise of any other function. are all the powers which it is necessary that government should possess. There is. That is but a part of the machine. But the author seems to forget that in our system the Federal Government stands not alone. they have done so in language plain and fall enough to render all implication unnecessary. He who thinks it better to belong to a splendid and showy government. I mean only to say. and they are so ample for all the purposes contemplated. But the great struggle is for those various and extended powers. that so far as the States and the people have entrusted power to government at all. and not of such as are denied to both. from the exercise of which avarice may expect its gratifications. and perfectly competent. of such powers only as may be exercised either by the one or the other. of course. But it is not competent to work out the whole result. I speak. and wily speculators prey upon the less skillful and cunning. the most vicious of the whole. professing a fair and legitimate object of public good. another sort of legislation. looks. there is still less necessity that it should do so. Let it be borne in mind that. complete in itself. nor of the Federal Government. and the most competent. by means of which hungry contractors may plunder the public treasury. the government has only to go on in the execution of its trusts. Let the Federal Government exercise only such power as plainly belongs to it. than to a free and happy one. but distributed. and the two together make the perfect work. It is thus that classes are united in supporting the powers of government. The State governments have also their part to perform. No auxiliaries are required. because each State is the best judge of what is useful or necessary to itself. too. Hence the desire for a profuse expenditure of the public money. And hence. which deludes so large a portion of mankind. that it is only necessary to understand them according to their plain meaning and to exercise them according to their acknowledged extent. as to all these subjects of domestic concern. only to the promotion of private interests. and hence the thousand schemes under the name of internal improvements. indeed. the Federal Government need not look beyond the letter of its charter for any needful power. really. is plainly possessed by. not lodged in one place. because. It is only in matters which concern our domestic policy. that any serious struggle for federal power has ever arisen. to work out its own part of the general result. Here. and adding to its powers. This is the topic upon which Judge Story has lavishly expended his strength.distinctly and plainly pointed out in the very letter of the Constitution. not the power of the State governments. unites with that self-interest by which all mankind are swayed. rejecting all such as is even doubtful. that love of splendor and display. no room to complain of any want of power to do whatever the interests of the people require to be done. And surely it would be strange if it were.
excises are next resorted to. The principle of representation is constant and uniform. and always have been. upon that ground. from their intrinsic importance. and without usurpation. would never be laid until other resources had failed. if it had been permitted. the levy of direct taxes is occasional and rare. and others of them. and those only under very extraordinary and pressing circumstances. It would have been well to avoid it altogether. a few topics yet remaining. STRUCTURE AND FUNCTIONS OF THE HOUSE OF REPRESENTATIVES. really exempts the other two-fifths from being taxed at all as property. In the course of forty years. if direct taxes had been apportioned. not a very candid view of a grave and important subject. but we should not have expected the author to dismiss it with such criticism only as tends to show that it is unjust to his own peculiar part of the country. I have thus finished the examination of the political part of these commentaries. for the public mind needs no encouragement to dwell. Judge Story has given his views of that clause of the Constitution which allows representation to three-fifths of the slaves. and if these should not furnish an adequate revenue. But a far more striking inequality has been disclosed by the practical operations of the government. upon the topics it suggests. no more than three direct taxes have been levied. harmoniously and without contest.26 CHAPTER X. and decidedly injurious to the people of the non-slaveholding States. all the common wants. The ordinary expenditures of the government are. Whereas. but simply to present them in a few of their strongest lights. and. as might have been foreseen. however. as it seems to me. which directs that "Representatives and direct taxes shall be apportioned among the several States. it seems to me. but as a mere compromise between conflicting interests and opinions. It is much to be regretted that it is not on all hands acquiesced in and approved." This is a very imperfect. as upon principle they ought to be. however. the whole of the slaves would have been taxed as property. There are. and will generally supply. and without dispute. it on the other hand. as the surest and most convenient mode of taxation. Direct taxes constitute the last resort. with unpleasant reflections. cannot be too often pressed upon public attention. have supplied. and. for no public necessity requires that it . of great public concern. according to their respective numbers". have been presented by the author in false and deceptive lights. I do not propose to examine them minutely. Imposts upon foreign importations. but he considers this provision "more specious than solid. It is manifest to everyone that the arrangement rests upon no particular principle. In an examination of the Constitution of the United States. and this is the only object with which this review was commenced. In his examination of the structure and functions of the House of Representatives. for while in the levy of taxes it apportions them on three-fifths of persons not free. and which ought not to be omitted. derived from other sources. He considers the compromise upon this subject as unjust in principle.useful ends of government. some notice of this peculiar feature of it was unavoidable. Some of these. He admits that an equivalent for this supposed concession to the South was intended to be secured by another provision. according to the real value of property within the State.
be selected for it. A different rule from that which prevails might subject the weaker States to intolerable oppression. It never would have answered to entrust the power of taxation to Congress. It resulted necessarily from the very nature of their union. and the South much more deeply than the North. This provision of the Constitution. that the thing is unjust in itself. will scarcely repress the dissatisfaction which such an announcement. having only half the representatives of its neighbor State. and it would be going too far to say that they would not. and is. Supposing that it is so. If the North really supposed that they conceded anything to the South. in fact. the rule which apportions taxation in the same way. by allowing representation to three-fifths of their slaves. should be held up as giving her advantages of which the North has reason to complain. We ought. I will not pause to inquire whether the rule apportioning representatives according to numbers. by selecting only such subjects of taxation as they themselves did not possess. on the contrary. was finally adopted by the convention. His remarks may render the public mind more unquiet than it now is they can scarcely tranquilize or reconcile it. All the States were interested in it. however. That taxation should be apportioned to representation. by that provision of the Constitution which apportions taxation according to representation. without some check against these and similar abuses. at the present day." by the non-slaveholding States. with her twenty-eight. with her one representative. I am very far from wishing to bring the subject into serious discussion. with any view to change. if this provision of the Constitution did not stand in the way. might yet have been subjected to twice the amount of taxation. sustains the views which have been presented upon this point. can scarcely be considered as an equivalent for anything conceded by some of the States to others. have generally sought to avoid it. will create. A combination among a few of the strongest States might. but I cannot agree that an arrangement. at some day or other. This principle was universally acknowledged throughout the United States. The people of the slaveholding States themselves have never shown a disposition to agitate the question at all.should be discussed. It has. falling in with preconceived opinions. who tells the people. in regard to this subject. to twice the taxes of Pennsylvania. whether north or south. for instance. The southern States would certainly never have adopted the Constitution without some such guarantee as this against those oppressions to which their peculiar institutions exposed them. by a little management. but. a modification of the great principle upon which the revolution itself was based. and that too in language which leaves little doubt that a wish is very generally entertained to change it. then. It would have been indeed strange if some one State. tending upon the whole to good results. may well excite our surprise. would never have adopted it. as it were ex cathedra. by a simple recommendation to acquiesce in it as a compromise. For myself. follows as a matter of course. Delaware. only. The slaves of the South afford the readiest of all possible subjects for this sort of practice. The difficulties under which the convention seem to have labored. and the weaker States. throw the whole burthen of taxation upon the others. which. after much. always "been complained of as a grievance. or which they possessed only to a comparatively small extent. contest. and it cannot now be changed without serious danger to the whole fabric. results from the federative character of the government. A grave author. therefore. be the correct one or not. to regard that provision of the . like Judge Story. obviously injurious to the South. and no check could have been devised more effective or more appropriate than the provision now under consideration. and the fact that this rule was adopted. it is an appropriate and necessary feature in every confederacy between sovereign States. because it might lead to their utter annihilation in the confederacy. they were certainly but poorly compensated for the concession.
and consequently for its taxation. But of what consequence is it. the domestic servants. if the labor of a slave be as productive as that of a free man. population is the best measure of this value which can be found. Of what consequence is it whether this contribution be made by the labor of slaves. and is. resulting from the industry of her people. Whether those people be men or women. they ought all to be represented. The peculiar private condition and relations of the people of a State to one another could not properly be enquired into by any other State. So far. upon what principle is the rule itself founded? We have already seen that the whole country had adopted the principle that taxation. the greater is the amount of productive industry. should be apportioned to representation. in the common government of all the States. But this rule never can be applied in practice. except in the harmony it served to produce. the cost of supporting him is much less. or even the mechanics of Massachusetts. Virginia had the same right to object to the representation of the apprentices. And. or bound to service for a limited time only. according to the value of that property to which government extends its protection.Constitution which allows representation to only three-fifths of the slaves. a greater surplus will remain of that of the slave. in fixing the principle of representation. in most cases. In regard to States. and. Reverting to the rule that representation shall be apportioned to population. from limiting representation to three-fifths of the slaves. Although the wealth of a State cannot be ascertained. injustice and oppression. without impertinence. according to his ability. There is no perfectly just rule of taxation but property. . either of individuals or nations. (and in agriculture it is so). of the same amount of food and clothing. of course. for all contribute to the aggregate of the productive industry of the country. and it cannot enter into the question of the influence which such State ought to possess. that is. the question of taxation was necessarily involved. because it is impossible to discover what is the amount of the property. but no State had a right to enquire from what particular sources that contribution arose. that the greater the number of people. then. the rule would operate injuriously upon the slave-holding States. even then. The population of a State is received as the best measure of the value of its property. the other States had no right to subject her to any disabilities or disadvantages on account of them. If Massachusetts had a right to object to the representation of the slaves of Virginia. a sufficiently accurate one. every man should contribute to the support of the government. its people can be easily counted. and is a matter with which the other States cannot intermeddle. by what sort of people this amount of production is afforded? It was required that each State of our Union should contribute its due proportion to the common treasury. That is a subject which each State regulates for itself. bond or free. and supposing that all parties acquiesce in the propriety of it. a proposition ascertained by the number of its people. Each State having a perfect right to frame its own municipal regulations for itself. or by that of freemen? All that the States had a right to require of one another was. is the exclusive concern of the State itself. for. It is enough that the State brings into the common stock a certain amount of wealth. and hence the number of its people gives the best rule for its representation. and of course a greater amount subject to the demands of the public necessities. that each should contribute its allotted proportion. as a concession made by the South. raised by the two classes. because it is in general true. Therefore. and one for which they received no equivalent.
as to this matter it was of no consequence by what name you called your people. nor tawny. Adams's purpose to show that. employing ten laborers on his farm. The convention had not then determined that representatives and direct taxes should be regulated by the same ratio. Certainly five hundred freemen produce no more profits. We ought to presume that every slave occupies a place which. then that slaves are people. And so. rational beings. If slaves are people. and the other only for a time limited in the apprentice's indentures. If the slave of the South be property. It is true. upon analogous principles. What matters it whether a landlord. that in some countries the laboring poor are called freemen. and numbers therefore. so long as the labor of the slave contributes as much to the common stock of productive industry. as forming the measure of national wealth. every one. indiscriminately. or gives them those necessaries at short hand? The ten laborers add as much wealth to the State. When they did determine this. Adams seem to me conclusive. But it is objected that slaves are property. are the fair index to wealth.The remarks of John Adams. and. one holds the right for the life of the slave. and. as to that matter. It is enough that a State possesses a certain number of people. is a logical sequitur which no one can possibly deny. be transformed into slaves. Therefore the State in which are the laborers called freemen should be taxed no more than that in which are the laborers called slaves. would be represented. increase its exports as much. as the labor of the white man.27 are very forcible upon this point. was imaginary only. and if taxation and representation be placed upon the same principle." It is obvious that these remarks were made for very different purpose from that which I have in view. in the course of one night. and what kind of interest has the owner in it? He has a right to the profits of the slave's labor. than five hundred slaves. whether by that of freemen or of slaves. are not more entitled to representation than any other species of property. Suppose by an extraordinary operation of nature or of law. "that the numbers of people are taken as an index of the wealth of the State. consequently. or less able to pay taxes? That the condition of the laboring poor in most countries. would the State be made poorer. . and for that reason. of what nature is that property. as to the state. It is in this character alone that the nonslaveholding States have a right to consider them. is as abject as that of slaves. and it was Mr. slaves should be considered only as people. of living. It is the number of laborers which produces the surplus for taxation. the remarks of Mr. and not three-fifths only. the master of an indented apprentice has a right to the profits of his labor. Jefferson's report of them. But they are also people. in fixing the ratio of representation. and regulated by the same ratio. We are not to enquire whether they be black or white. The subject then before the convention was the proper rule of taxation. are entitled to representation as people. one-half the laborers of a State could. that of the fishermen particularly of the northern States. and consequently of taxation. would be occupied by a free white man. delivered in convention. in the one case as in the other. But the States who hold no slaves have no right to complain that this is not the case in other States. and not as subjects of taxation. as an index of the amount of taxable wealth. that. no greater surplus for the payment of taxes. but for his presence. nor do I see how those who held his opinions could possibly have voted otherwise. and in this character alone is it just to consider them. gives them annually as much money as will buy them the necessaries of life. According to Mr. he observed. to show that representation of all the slaves ought to have been allowed. if this were so. as has already been shown. nor what are their peculiar relations among one another. but that the difference. and. in others they are called slaves.
They are peculiar. seems to have forgotten this connection between representation and taxation. will act . In all these respects. the indentures of an apprentice may be transferred if the laws of the State will allow it. without enquiring into the principles upon which her representation may be enlarged. and leading inevitably to popular resistance and tumult. for the relative wealth of the States would be continually changing. He thinks that direct taxes ought to be apportioned. they would be forced into minute examinations. No approximation to the truth could be hoped for. That they would bear something more than their due share of this burthen. and. little better off than the lamb in the embrace of the wolf. than the free laborer might be called the wealth of his employer. its taxes would be decreased in the same proportion. for although its representation would thereby be decreased. they can neither be buried under ground. in most States. in like manner. The author. would yet have a voice in fixing their value us subjects of taxation. but as to the State. and other regions. Why confine it to three-fifths? Suppose that none of them were entitled to representation. It is also true. Mr. and if the one be not entitled to representation. and. while. the right of representation to the same extent. they should equally add to the quota of its representation. and for that reason. indeed. without a host of officers. is just as certain as that man. indeed. the South would be. Judge Story supposes that it is a great advantage to the slave-holding States that. while threefifths of the slaves are entitled to representation. consequently. in which case "the whole of the slaves would have been taxable as property. he looks only at the sources whence the Union may draw wealth from the South. This is the true mode of testing the author's position. that the owner of a slave has. the slave and the indentured apprentice stand upon precisely the same principle. again. and our country has produced few men who could speak more wisely: "A slave may. of course. In this case. and neither of them can be regarded as a free man. under all circumstances. having none of them. And this process must be gone through at every new tax. the true rule but it is wholly impracticable. all the slaves would be exempted from taxation. whose compensation would consume a large proportion of the tax. harassing and vexatious in their details. Adams shall speak for me. It will be found that every State values the right of representation at a price infinitely beyond the amount of direct taxes to which that right may subject it. and. but this is only because the laws of the State authorize him to do so. a right to sell him. both are equally its wealth. population has been selected as the proper measure of the wealth of the States. in the eye of that community they are both people. the other also should be denied that right. would have a less amount of taxes to pay. from the very nature of their duties." I have already remarked that this is. Whatever be the difference of their relations to the separate members of the community. But. to a particular region. too. nor hid in the secret drawers of a bureau. from the custom of speech. the only consequence would be. And. The slaves are easily found. they are both property. therefore. and to discover the taxable subjects.but this is a difference only in the extent. upon our author's principle. Hence. for the same reason. two-fifths are exempted from taxation. And. be more properly called the wealth of his master. "according to the real value of property within the State. every other State would have cause to rejoice at the diminution of the number of people. To a certain extent. indeed. and not in the nature of the interest. Here. however. the slaveholding States would have great reason to be content with so distinguishing an advantage. and should therefore equally add to the quota of its tax. that the State would have fewer representatives." Yea. inconsistent with the freedom of our institutions. since they lose. It would be alike impossible to fix a satisfactory standard of valuation. the southern States have little reason to be thankful that two-fifths of their slaves are exempted from taxation. according to our author. in consequence of it.
for the South feels that these supposed advantages are. intelligence and virtue. it is impossible not to be struck with the laborious industry which he has displayed in the collection and preparation of his materials. although they hold to their respective States precisely the same relation. they are laborers. and thus they would have stood. in elaborate works designed to form the opinions of rising generations. but confines himself. as a whole. We therefore recognize them as people. and would be taxed only according to that part of their wealth which they might choose to disclose. had a right to demand that all their slaves should be represented. while the representation of the southern States would thus have been increased. or which they could not conceal. And in the estimate of this wealth. 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. We receive population as the best practicable substitute for it. it is of no consequence to us what is their condition at home. It is a result which is no longer attainable. bond or free. which she has made only to a spirit of conciliation and harmony. is little else than a rule imposing on the southern. and not as people to be represented. in fact. and allowing to them only the shadow of influence in the measures of that government. and this alone would be consistent with the great principles which ought to regulate the subject. The rule. as laborers and contributors to the common treasury. they are all entitled to their respective shares of influence in the measures of government. as they ought to do. and the South will. amount of taxable subjects. whether black or white. It would have been perceived that. in all respects. "Count your people. But they have reason to complain that great authors. and you shall contribute for them precisely as we contribute for our people. that representatives and direct taxes should be apportioned according to the same ratio. therefore. Considering him as a . and give them representation as such. The slaveholding States. and as all people. Regarding this work of Judge Story. States almost the entire burthens of the government. through their representatives in the federal councils. In the mean time. as is held by the slaves of the South to their respective States. and therefore they contribute the mine. whatever be their private and peculiar conditions and relations. they would have no right to be heard in their own defense. On the other hand. their share of the public taxes would have been increased in the same proportion. been then adopted into the Constitution. they shall be regarded as people still. The truth is. not being considered as people. to the particular form before him. are presumed to contribute their share to the stock of general wealth. and not less than their just proportion to its intelligence and public virtue. I cannot doubt that this would have been conceded by the convention. and which neither justice nor sound principle would have exacted of her. with great strictness. had the principle. the slave-holding States have always contributed more than their just proportion to the wealth and strength of the country. and which they owe only to the liberality of the other States. that when we come to lay direct taxes. This is the only perfectly just measure of political influence. the non-slave-holding States would be represented in proportion to the whole numbers of their people. The northern States would have said to them.according to his nature. they yielded too much in agreeing that only three-fifths of them should possess that right. which considers slaves only as property to be taxed. sacrifices." This is the plain justice of the case. upon the same footing with the other States. He does not often indulge himself in speculations upon the general principles of government. All that we require is. but it is a measure which cannot be applied in practice. their people would not be counted as taxable subjects. acquiesce in the arrangement as it now stands.
as its responsibility is only to the people. carried out to its legitimate results. therefore. as well as a lawyer. since the false views which it presents. he has displayed an extraordinary liberality of concession in this respect. What redress is there. and in them it is the true principle. too seriously mischievous to be compensated by any new lights which it sheds upon other parts of our Constitution. should find it to their interest to pass laws oppressive to the minority. to the country. are calculated to exert an influence over the public mind. But in a country so extensive as the United States. we have given it the character which the author will most proudly recognize. precisely as it affects others. But it is not in this light only that we are to view it. in detail. We adopt it in all our State governments.mere lawyer. the other departments come in for a full share of his favor. and so softened and palliated. a strong argument in favor of federal power. there is no danger in this principle. character and pursuits. and has taken unusual pains to justify and recommend him own peculiar opinions. that majority may make it whatever they please. present no serious difficulty to his mind. whether his book will produce more evil than good. In his examination of the legislative department. and violating their rights as secured by the Constitution. The principle that ours is a consolidated government of all the people of the United States. The long-contested powers to protect manufactures. he can discern. and surround it with imposing splendors. I allude to them here. and with these differences. An examination of these several subjects. in mode and degree. would swell this review beyond its proper limits. his work does honor to his learning and research. To whom is that majority itself responsible? Upon the theory that it possesses all the powers of the government. because the majority can pass no law which will not affect themselves. to conform to his own beau ideal of a perfect government. with an endless list of similar objects to which the public money may be applied. and. And it is his particular pleasure to arm it with strong powers. nothing to control it. he does it with a censure so faint. and will form a very useful addition to our law libraries. as to amount to positive praise. to construct roads. In a population strictly homogeneous in interests. often at the expense of candor and fairness. by the majority over the minority. The author is a politician. We may well doubt. That principle. upon the principles of Judge Story? Is it to be found in the federal tribunals? They are themselves a part of the oppressing government. and not a confederation of sovereign States. marked by geographical lines. Having made it. by forced constructions. and strange misapprehensions of history. of the nature and character of our government. and are. containing a majority of the people of all the States. and. in it nothing that is deficient. . This he has done. except by interest alone. there is nothing to check. indeed. at the expense of historical truth. a fair opportunity is afforded for the exercise of an oppressive tyranny. Even when he is forced to condemn. It is. and wherever that interest is distinct and clear. Large masses of mankind are not apt to be swayed. and is rendered unnecessary by the great principles which it has been my object to establish. with great differences of character. The powers of such a government are supposed to reside in a majority of the people. There is not a single important power ever exercised or claimed for Congress which he does not vindicate and maintain. almost invariably. and as showing the dangerous tendency of its political principles. too. only as illustrating the general character of this book. Let it be supposed that a certain number of States. will assuredly render the federal government the strongest in the world. must necessarily render it little less than omnipotent. And it is not for the legislature alone. that these unbounded powers are claimed. nothing that is superfluous. Indeed. it is little less than a labored panegyric upon that instrument. interests and pursuits. and when we have said this. it presents a motive of action too strong to be controlled.
and justifying its excesses under the name of republican liberty. some one department will acquire an undue preponderance over the rest. indeed. according to the author's theory. But the system of our author. Hence the legislature. ruling without control. naturally assume upon themselves every power which is necessary to carry that will into effect. Is it to be found in the virtue and intelligence of the people? This is the author's great reliance. when it refuses to submit to its own self-imposed discipline. unhappily. If they possess rights. unchecked. without any definite rules to prevent it from running into abuse. the immediate representatives of the popular will. and who. and whether it be injustice or not. there are no such people and no such rulers. such as the author supposes ours to be. but he supposes that the virtue and intelligence of the people will. they have no means to vindicate them. than that of a party. or any adequate security for the rights and liberties of the people. and. Of what people? Of that very majority who have committed the injustice complained of. But we should not rely on it with too implicit a confidence. under all circumstances. perhaps. in a consolidated government. More tolerable. always wise. are the sole judges whether they have power to do it or not. Free government. while it invites the majority to tyrannize over the minority. and is no longer safe. This is despotism of the worst sort. it is a cruel mockery to talk about the rights of the minority. it requires protection against itself. as he understands it. But. if they will take care to be always virtuous. The separation and complete independence of the several departments of the government is usually supposed to afford a sufficient security against an undue enlargement of the powers of any one of them. for that majority itself. and it is generally considered a very great discovery. is not safe even. and. for that reason. The idea is wholly illusory. in their constitution of government. by far. It is a system unbalanced. it was wisely adopted in our systems. True political liberty demands many and severe restraints. is liable to great abuses. Under such a system as this. and. so far as its protecting power is concerned. if they can assure themselves that the rulers they may select will never abuse their trust. and always vigilant.therefore. The first excesses are apt to be committed by the legislature. which their own will may at any time destroy. there is a peculiar proneness to this. as the mere creatures of their own will. to consider the very restraints which they have voluntarily imposed upon themselves. in the end. learn. The majority alone possess the government. The people being possessed of all power. they alone measure its powers. if it . A government must be imperfect. is made for minorities alone. consulting its own interests. It is true. but will always understand and always pursue the true interests of the people. because there is neither knowledge nor wisdom enough in man to render them accurate and permanent. And they will be equally secure. and gives the minority no redress. He acknowledges that the system. in a system like ours. that public liberty could scarcely exist without such separation. And let us not sleep in the delusion that we shall derive all needful security from our own "intelligence and virtue." The people may. This is said to be the only real discovery in politics. the democratic principle is continually extending itself. and becoming a victim to its own excesses. preserve their liberties forever. I have little faith in these balances of government. which can be claimed in modem times. is the despotism of one man. and feeling that they are subject to no authority except their own. and wield them without control or responsibility. prove a sufficient corrective. the only contrivance by which public liberty can be preserved. In all free governments. as affording in itself any adequate barrier against the encroachment of power. indeed. not impartial judges of the powers of that government. This is not liberty. In spite of every precaution against it.
and it should teach us the necessity of watching. It is a truth. to extend its powers and sustain its abuses. that our character is not homogeneous. A great majority of mankind are much more sensible to their interests than to their rights. And it could not be otherwise. if they could. This results from the fact. that "a power over a man's subsistence is a power over his will. all governments professing to be free will require to be watched. however. an interest distinct from that of the minority. that if this ever was the view of the people. but in the vices of mankind. and nothing will be left to the minority but the poor privilege of complaining. as Judge Story would have us. Its object is to protect the weak. checked and controlled. set in motion. apart from the States. and suggest new and baser methods of attaining them. with the greater jealousy. Whatever be the theory of our Constitution. This result could scarcely be brought about. although it is undoubtedly defective in many important respects. a peculiar interest is enlisted. To do this effectually requires more than we generally find of public virtue and public intelligence. will free government be safe from abuses. Until all men shall become so perfect as not to require to be ruled. serves only to point out new objects of unlawful pursuit. It is truly and wisely remarked by the Federalist. but in their ignorance and folly. it has ceased to be so. Public virtue and intelligence avail little.require such a degree of virtue in the people as renders all government unnecessary. indeed. Whenever the people can be persuaded that it is their greatest interest to maintain their rights. That virtue falls before the temptation's of interest which you present to it. Looking at our own Federal Government. to restrain the violent. The checking and controlling influences which afford safety to public liberty. not in their knowledge and wisdom. or in the offices and emoluments which flow from the patronage of the government. The people cannot always protect themselves against their rulers. then. these facts should tend to bind us the more closely together. thus deprived of its encouraging hopes. Unhappily. for. the greatest interest of all to support that government in its purity. If that majority can find. guarded. and regarding it. if the Federal Government were allowed to rest on the principles upon which I have endeavored to place it. in past times. of late years. precisely in proportion as its democratic principle is extended. are not to be found in the government itself. so long will government be liable to run into abuses. which will go on and perform its work without human agency. no free government. would have been overthrown. and our pursuits are wholly different. it is. It is not a self-acting machine. either in the pursuits of their own peculiar industry. they will pursue that interest. to punish the vicious. as to rob them of their corrupting influences over the public mind. the greatest interest of the whole is not felt to be. as a consolidated government of all the people of the United States. In an enlarged sense. Power and patronage cannot easily be so limited and defined. and instead of the enlarged and general interest which should check and restrain it. and then only. we shall not find in it this salutary countervailing interest. and regulate and direct its operations. the greatest interest of all the parts. or to fail in virtue. So long as these are liable to err in judgment. and to compel all to the performance of the duty which man owes to man in a social state." As . Rightly understood. although in truth it is. has made it a consolidated government. Government is founded. every departure from the strict principles of our union. it is much the best that has yet been devised. however. it cannot be separated from the human beings who fill its places. in such a condition of things as this. Thus the government becomes tyrannous and oppressive. the government of an irresponsible majority. and that intelligence. by showing us our dependence upon each other. its practice. no less melancholy than incontestable. not in the virtues.
to watch their rulers wisely. The confederated States confer on their common government only such power as they themselves cannot separately exercise. And even in these subdivisions. so long as the federative principle is duly respected and maintained. These are necessarily slow and deliberate. under a consolidated government Popular masses. but to the people in their character of distinct political corporations. I venture to predict that it will become absolute and irresponsible. not to the people in the aggregate. so far as their common government is concerned. in their own State governments. Conscious that they can find. and of the most fatal public measures adopted under the excitements of the moment. are easily led into fatal errors. affording time for excitement to subside. in the right of the States to keep their common government within their common sphere. and not to feel that they owe obedience only to that. this danger is avoided. by a consciousness that they cannot be unwisely exerted. or such as can be better exercised by that government. they are forbidden to act until they have had time for reflection. for the protection and security of their rights. and even that little should be watched by a power authorized and competent to arrest its abuses. and for the exercise of a cool and temperate judgment. and a sufficient security for the due exercise of that right is afforded by the fact. It is difficult to perceive how a Federal Government. established on correct principles. not to one government only. In that system. All the requisite checks and balances will be found. to give it power enough. So far as our own government is concerned. and their authority to interpose for the correction of federal abuses shall be denied and overthrown. In this consists the great superiority of the federative system over every other. not directly to the people en masse. the Federal Government is responsible. but to the people in separate and comparatively small subdivisions. In their hands. Besides. The people should be taught to regard them as their greatest interest. they can act only through the forms of their own separate governments. they are taught to look. That power can be found only in the States. before they reach that of the United States. can ever be overthrown. they form . therefore. and to prevent it from assuming too much. their feeling of dependence is less oppressive. an equal interest. the people are not liable to be acted on (at least. acting under the excitements of the moment. Having to pass through their own governments. precisely in proportion as the rights of the States shall cease to be respected. How easy it is for the adroit and cunning to avail themselves of such occasions. and for passion to cool. Maintained in their just rights and powers. History is full of examples of the good and great sacrificed to the hasty judgments of infuriated multitudes. these efforts are kept under clue restraints. and their judgments more free. that it is the interest of the States to exercise it discreetly. It should be the object of every patriot in the United States to encourage a high respect for the State governments. protection against the wrongs of the Federal Government. and guard themselves against the encroachments of power? In a federative system. for a people so acted on.little as possible of this power should be entrusted to the Federal Government. The right of interposition belongs. and how impossible it is. not to the same extent). and as the first objects of their duty and affection. except to the injury of the people themselves. And while their efforts to throw off oppression are not repressed by a feeling that there is no power to which they can appeal. They have. except by external violence. However easy it may be to steal power from the people. governments do not so readily yield to one another. it may be safely lodged where there is no interest to abuse it. Under a federative system. the power of interposition is attended with no danger. by those influences which are so apt to betray and enslave them.
and for their own uses. sufficiently near to afford a reasonable security to our rights and liberties. It is not found within the Constitution. Having created the Federal Government at their own free will. than incur the risk of embarrassing that government. Make it the interest of their people to serve them. government itself would be perfect. in the last resort. Shall we then leave that government free from all restraint. The truth is. through our carelessness or neglect. Then alone will their voice be heard with respect at Washington. merely because the proper countervailing power is liable to abuse? Upon the same principle we should abandon all the guards and securities which we have so carefully provided in the Federal Constitution itself. why should they seek to destroy it? Having clothed it with a certain portion of their own powers. but the Federal Government is. Perfection is not to be hoped for. that it can never be applied without great deliberation and caution. and their dignity and influence to be lost.28 This is an inseparable incident of sovereignty. by any attempts to check and control it. to say the least of it. for their own benefit alone. that it is certain in its effects. It is true that a State may use its power for improper purposes. which its unavoidable imperfections render necessary. They ought to know that they can look nowhere else with perfect assurance of safety and protection. As that Constitution was formed by sovereign States. or on improper occasions. Upon the same principle. what powers they intended to confer on it. but in their dignity and influence. they alone are authorized. and that it is but little liable to abuse. it will be in vain to invoke their protection against the gigantic power of the Federal Government. It is vain to hope that the federative principle of our government can be preserved. . This is the point to which the vigilance of the people should be chiefly directed. the only effectual check on federal encroachments. we should enlist the same interest in the wise and proper application of those checks. Their highest interest is at home. Our object was to render it such that the people should feel an interest in sustaining it in its purity. will ever call into action this salutary and conservative power of the States. and to guard that power as carefully as we can. not that the States will interpose too often. If their people suffer them to sink into the insignificance of mere municipal corporations. That interest is found in the States. but exists independent of it. We have only to apply to this subject our best discretion and caution. but an approximation to it. But this is no reason why we should abandon it to its own will. equally liable to dangerous errors and violations of trust. an interest strong enough to resist all the temptations of federal office and patronage. it is indispensably necessary to maintain the States in their proper position. or that anything can prevent it from running into the absolutism of consolidation. Flagrant abuses alone. And it possesses as a check these distinguishing advantages over every other. But to render this right available for any good purpose. for otherwise it could not long subsist. not only in their rights. simply because they have never surrendered it to any other power. it is at least one which our system allows.the true balance-wheel. In the formation of the Federal Government we have been careful to limit its powers and define its duties. whenever the question arises between them and their common government. but that they will rather submit to federal usurpations. if we suffer the rights of the States to be filched away. then alone will their interposition avail to protect their own people against the usurpations of the great central power. a right which belongs to the States. and such as public liberty cannot endure. is not unattainable. why should they desire to render those powers inoperative and nugatory? The danger is. their palladium is their own State governments. But whether this check be the best or the worst in its nature. to determine. Let them then maintain those governments. to confer no more power than is absolutely necessary. for if it were not so. all checks upon government are more or less imperfect.
a delegate from the county of Orange. nevertheless. and privileges. appeared at Congress. General Hamilton one of the principal writers of the Federalist.] 2. They were Federalists. C. liberties. visited Charleston. beyond all doubt.. a deputy from Orange county. in the colony of New York. and to restore . in point of fact. show that she considered herself merely as an appendage of the British Crown. signally failing in this. 1774." "Monday. is perfectly authenticated and has never been disputed. yet. or monarchical powers to the Federal Union. At this time all the colonies were in the habit of calling England "home. belonged to the same political party as General Hamilton. C. he exerted his commanding influence to impart centralized. The following are extracts from them: New Hampshire. 3.Endnotes 1. and took his seat as a deputy from that colony. 5." It is evident. 1774 Simon Bocrum. The truth is. who was the King of England." but no such language as "our sister colonies" was in vogue. he spoke of that colony as." When the first Congress assembled in 1774.B." and the "mother country." And they came together with no design to amalgamation or to blend their separate and. from these extracts. appeared this morning. Chief Justice Jay. the following extracts from the Journals of Congress may not be out of place: "Wednesday. Esq. October 1.. and so odious did this party become to the American people. Henry Wisner.C. and that she had a right to call on her King. A reference to the credentials of the Congress of 1774 will show. The historical fact here stated. Their first intimate acquaintance with each other grew out of incidents connected with the older. When Mr. that it was driven out of power at the expiration of old John Adams's single presidential term in 1800. but simply to combine against a common foe. which being read and approved. by New York herself. to secure and perpetuate their rights. as to each other. to protect her against the usurpations of the British Parliament. September 20. Judge Story and Chief Justice Kent. they were not elected as such. in his subsequent interpretations of the Constitution he did what he could to bend the instrument to suit his views. that her legislature was alone authorized to tax her. earlier. the majority of her people were not ripe for the measures pursued by Congress. in the colony of New York. In the convention which framed the Constitution. that although the delegates from certain portions of the people of New York were admitted to seats in Congress as delegates from the colony. and would not have agreed to appoint delegates for the whole colony. The resolutions of Virginia. neither were they ever recognized as such. independent sovereignties.. as will presently appear. consult and adopt such measures as may have the most likely tendency to extricate the colonies from their present difficulties. They no more proposed to blend their separate sovereignties than a community of gentlemen propose to make common stock of all their property when they to take means to detect and punish burglars and horse-thieves. he took his seat in Congress as a deputy from the colony of New York. in the colony of New York. appeared in Congress as a deputy from King's county. was undoubtedly at heart a monarchist. the members all met as "strangers. 1773. in 1765. Quincy of Boston. — [C. which being read and approved. the true character of that assembly. There was little or no intercourse between the colonies. — [C. But. he took his seat as a delegate from that colony. and produced the credentials of his election. 1774.] 4. S. "this distant shore. Esq. French war in 1756. On more than one occasion he plainly avowed himself such. John Hening." "Saturday. September 14. B. and produced a certificate of his election by the said county. consolidated. "To devise. and.
and the miseries to which they are. agreeably to instructions given by the general assembly. Only a few of her counties were represented." New Jersey. on every inhabitant hereof. and mutual confidence. which acts and bills. and royal instructions." Maryland. parliamentary acts. to secure British America from the ravage and ruin of arbitrary taxes. "To consult on the present state of the colonies. "To consult on proper measures to obtain a repeal of the several acts of the British Parliament for levying tax on his Majesty's subjects in America without their consent. in the precedent and consequences. "To consider the acts lately passed. and so ardently desired by all British America. "To consider of the most proper and effectual manner of so operating on the commercial connection of the colonies with the mother country as to procure redress for the much injured province of Massachusetts Bay. and upon proper measures to establish the rights and liberties of the colonies upon a just and solid foundation. to determine upon all such prudent and lawful measures as may be judged most expedient for the colonies immediately and unitedly to adopt. "To represent the colony in the General Congress. in order to obtain relief for an oppressed people. by the operation of certain acts of Parliament respecting America." Rhode Island. affect the whole Continent of America. and must be reduced. and speedily to procure the return of that harmony and union. "To attend a general congress." Pennsylvania.that peace." Connecticut "To consult and advise on proper measures for advancing the beat good of the colonies. so to be assembled. and the colony of Massachusetts Bay. To consult and advise with the deputies from the other colonies. and a redress of those grievances. by reason of the several acts of Parliament that impose taxes or duties for raising a revenue. shall be most likely to obtain a repeal of the said acts. which once happily subsisted between the parent country and her colonies. and the preservation of American liberty." For these purposes the delegates are "invested with such powers as may make any acts done by them obligatory in honor. ascertaining American rights upon the moat solid and constitutional principles. (a) and the redress of our general grievances. for the relief of Boston. and of the statutes. repairing the breach made in those rights. and to deliberate and determine upon wise and proper measures to be by then recommended to all the colonies." Delaware. for the recovery and establishment of their just rights and liberties. so beneficial to the whole empire." South Carolina." Virginia. to effect one general plan of conduct operating on the commercial connection of the colonies with the mother country. and the restoration of union and harmony between Great Britain and the colonies. most ardently desired by all good men." North Carolina. some by deputies authorized to "represent. and for establishing that union and harmony between Great Britain and the colonies which is indispensably necessary to the welfare and happiness of both. and for guarding them for the future against any such violations done under the sanction of public authority. and such conference to report from time to time to the Colonial House of Representatives. "To take such measures as they may deem prudent to effect the purpose of describing with certainty the rights of Americans. which make an invidious distinction between his Majesty's subjects in Great Britain and America. Also the grievances under which America labors. with full power and authority to conceit." New York." and some by deputies authorized to "attend Congress. agree to and prosecute such legal measures as in the opinion of the said deputies. . and an apostate to the liberties of America. harmony. who is not an alien to his country's good." Massachusetts. and lay unnecessary restraints and burdens on trade. civil and religious. and bills depending in Parliament with regard to the port of Boston. "To form and adopt a plan for the purposes of obtaining redress of American grievances.
[The above extracts are made from the credentials of the deputies of the several colonies, as spread upon the Journal of Congress, according to a copy of that bound (as appears by a gilt label on the back hereof) for the President of Congress — now in possession of B. Tucker, Esq.) It is perfectly clear from these extracts, 1. That the colonies did not consider themselves as "one people," and that, they were therefore bound to consider the quarrel of Boston as their own; but that they made common cause with Massachusetts, only because the principles asserted in regard to her, equally affected the other colonies; 2. That each colony appointed its own delegates, giving them precisely such power and authority as suited its own views; 3. That no colony gave any power or authority, except for advisement only; 4. That so far from designing to establish "a general or national government," and to form, themselves into "a nation de facto," their great purpose was to bring about a reconciliation and harmony with the mother country. This is still farther apparent from the tone of the public addresses of Congress. 5. That this Congress was not "organized under the auspices and with the consent of the people, acting directly in their primary, sovereign capacity, and without the intervention of the functionaries to whom the ordinary powers of government were delegated in the colonies," but, on the contrary, that it was organized by the colonies as such, and generally through their ordinary legislatures; and always with careful regard to their separate and independent rights and powers. If the Congress of 1774 was "a general or national government," neither New York nor Georgia was party to it; for neither of them was represented in that Congress. It is also worthy of remark that the Congress of 1774 had no agents of its own in foreign countries, but employed those of the several colonies. See the resolutions for delivering the address to the King passed October 25, 1774, and the letter to the agents, approved on the following day. (a) Massachusetts, the particular wrongs of which are just before recited at large. 6. The Journals of Congress afford the most abundant and conclusive proofs of this. In order to show the general character of their proceedings, it is enough for me to refer to the following: On the 11th October, 1774, it was "Resolved unanimously, That a memorial be prepared to the people of British America, stating to them the necessity of a firm, united and invariable observation of the measures recommended by the Congress, as they tender the invaluable rights and liberties derived to them from the laws and Constitution of their country." The memorial was accordingly prepared, in conformity with the resolution. Congress having previously had under consideration the plan of an association for establishing non-importation, &c., finally adopted it, October 20, 1774. After reciting their grievances, they say: "And, therefore, for ourselves and the inhabitants of the several colonies whom we represent, firmly agree, and associate, under the sacred ties of virtue, honor and love of our country, as follows." They then proceed to recommend a certain course of proceeding, such as non-importation and non-consumption of certain British productions; they recommended the appointment of a committee in every county, city and town, to watch their fellow-citizens, in order to ascertain whether or not "any person within the limits of their appointment has violated this association"; and if they should find any such, it is their duty to report them, "to the end, that all such foes to The rights of British America may lie publicly known, and universally contemned as the enemies of American liberty; and, thenceforth, we respectively will break off all dealings with him or her." They also resolve, that they will "have no trade, commerce, dealings or intercourse whatsoever, with any colony or province in North America, which shall all not accede to, or which shall hereafter violate this association, but will hold them as unworthy of the rights of freemen, and as inimical to the liberties of their country." This looks very little like the legislation of the "general or national government" of a "nation de facto." The most important measures of general concern are rested upon no stronger foundation than "the sacred ties of virtue, honor, and the love of our country," and have no higher sanction than public contempt and exclusion from the ordinary intercourse of society. 7. That the powers granted to the delegates to the second Congress were substantially the same with those granted to the delegates to the first, will appear from the following extracts from their credentials:
New Hampshire. "To consent and agree to all measures, which said Congress shall deem necessary to obtain redress of American grievances." Delegates appointed by a Convention. Massachusetts. "To concert, agree upon, direct and order (in concert with the delegates of the other colonies) " such further measures as to them shall appear to be the best calculated for the recovery and establishment of American rights and liberties, and for restoring harmony between Great Britain and the colonies" Delegates appointed by Provincial Congress. Connecticut. "To join, consult and advise with the other colonies in British America, on proper measures for advancing the best good of the colonies." Delegates appointed by the Colonial House of Representatives. The colony of New York was not represented in this Congress, but delegates were appointed by a convention of deputies from the city and county of New York, the city and county of Albany, and the counties of Dutchess Ulster, Orange, Westchester, Kings and Suffolk. They gave their delegates power to "concert and determine upon such measures as shall be judged most effectual for the preservation and re-establishment of American rights and privileges, and for the restoration of harmony between Great Britain and the colonies." Queen's County approved of the proceeding. Pennsylvania. Simply to "attend the general Congress." Delegates appointed by Provincial Assembly. New Jersey. "To attend the continental Congress, and to report their proceedings at the next session of the General Assembly." Delegates appointed by the Colonial Assembly. Delaware. "To concert and am upon such further measures, as shall appear to them best calculated for the accommodation of the unhappy differences between Great Britain and the colonies on a constitutional foundation, which the House most ardently wish for, and that they report their proceedings to the next session of General Assembly." Delegates appointed by the Assembly. Maryland "To consent and agree to all measures, Which said Congress shall deem necessary and effectual to obtain a redress of American grievances; and this province bind themselves to execute to the utmost of their power, all resolutions which the said Congress may adopt." Delegates appointed by Convention, and subsequently approved by the General assembly. Virginia. "To represent the colony in general Congress, to be held, &c." Delegates appointed by Convention. North Carolina. "Such powers an may make any acts done by them, or any of them, or consent given in behalf of this province, obligatory in honor upon every inhabitant thereof," Delegates appointed by Convention and approved in General Assembly. South Carolina. "To concert, agree to, and effectually prosecute such measures, as in the opinion of the said deputies, and the deputies to be assembled shall be most likely to obtain a redress of American grievances." Delegates appointed by Provincial Congress. In the copy of the Journals of Congress now before me, I do not find the credentials of the delegates from Rhode Island. They did not attend at the first meeting of Congress, although they did at the subsequent period. Georgia was not represented in this Congress until September, 1775. On the 13th May, 1775, Lyman Hall appeared as a delegate from the parish of St. Johns and he was admitted to his seat, "subject to such regulations as the Congress shall determine, relative to his voting." He was never regarded as the representative of Georgia, nor was that colony then considered as a party to the proceedings of Congress. This is evident from the fact that, in the address to the inhabitants of Great Britain, they use the style, "The twelve United Colonies, by their delegates in Congress, to the inhabitants of Great Britain," adopted on the 8th July, 1775. On the 20th of that month Congress were notified that a convention of Georgia had appointed delegates to attend them, but none of them took their seats till the 13th September following. They were authorized "to do, transact, join and concur with the several delegates from the
other colonies and provinces upon the Continent, on all such matters and things as shall appear eligible and fit, at this alarming time, for the preservation and defence of our rights and liberties, and for the restoration of harmony, upon constitutional principles, between Great Britain and America." Some of the colonies appointed their delegates only for limited times, at the expiration of which they were replaced by others, but without any material change in their powers. The delegates were, in all things, subject to the orders of their respective colonies. 8. This was done by Pennsylvania. — [Sec 9 2 Dallas, Col. L. of Penn. 3.] 9. This statement of Judge Story is in opposition to the following language of Judge Henry Baldwin, who was confessedly one of the ablest jurists who has graced the bench of the Supreme Court of the United States: "Their SEPARATE INDEPENDENCE WAS PROCLAIMED, and they remained towards each other as they were before, as colonies, and then as States; they did not alter their relations; the same delegates from the colonies acted as the representatives of The States; so declared themselves, and continued their session without new credentials. The appointing power being the same, the separate legislature of each State, as a State, nation, or empire; THE PEOPLE the supreme head, as the King, the Emperor, the Sovereign. These colonies were not declared to be free and independent States by substituting Congress in the place of King and Parliament; nor by the people of the States, transferring to the UNITED STATES that allegiance they had owed to the Crown." Bald. 29. — [C. C. B.] 10. A document which I have so met with elsewhere but which may be found in the Appendix to Professor Tucker's elaborate and instructive Life of Jefferson, affords important evidence upon this point. As early as May, 1775, the plan of a "confederation and perpetual union" among the colonies, was prepared and proposed for adoption. It was not in fact adopted, but its provisions show, in the strongest manner, in what light the colonies regarded their relation to one another. The proposed union was called "a firm league of friendship"; each colony reserved to itself "as much as it might think proper of its own present laws, customs, rights, privileges, and peculiar jurisdictions, within its own limits; and may amend its own Constitution as may seem best to its own Assembly or Convention"; the external relations of the colonies were to be managed by their general government alone, and all amendments of their "Constitution," as they termed it, were to be proposed by Congress and "approved by a majority of the colony assembles." It can scarcely be contended that this "league of friendship," this "confederation and perpetual union," would, if it had been adopted, have rendered the people of the several colonies less identical than they were before. If, in their opinion, they were "one people" already, no league or confederation was necessary, and no one would have thought of proposing it. The very fact, therefore, that it was proposed, as a necessary measure "susceptible for their common defence" against their enemies, for the security of their liberties and their properties, the safety of their persons and families, and their mutual and general welfare," proves that they did not consider themselves as already "one people," in any sense or to any extent which would enable them to effect those important objects. This proposition was depending and undetermined at the time of the Declaration of independence. 11. In point of fact, Virginia declared her independence on the 15th of May, 1776. The following beautiful allusion to that scene is extracted from an address delivered by Judge Beverly Tucker, of William and Mary College, before the Petersburgh Lyceum, on the 15th of May, 1848: That spectacle, on this day sixty-three yearn, Virginia exhibited to the world; and the memory of that majestic scene it is now my task to rescue from oblivion. It was on that day that she renounced her colonial dependence on Great Britain, and separated herself forever from that kingdom. Then it was that, bursting the manacles of a foreign tyranny, she, in the same moment imposed on herself the salutary restraints of law and order. In that moment she commenced the work of forming a government, complete within itself; and having perfected that work, she, on the 29th of June in the same year, performed the highest function of independent sovereignty, by adopting, ordaining, and establishing the Constitution under which all of us were born. Then it was that, sufficient to herself for all the purposes of government, she prescribed the oath of fealty and allegiance to her solo and separate sovereignty, which all of us, who have held any office under her authority, have solemnly called upon the Searcher of Hearts to witness and record. In that hour, gentlemen, it could not be
cannot fail to be acceptable to every American reader: "Wednesday. to restore peace and security to America under the British Government. and unanimously agreed to. and afterwards delivered at the clerk's table. and. oppression. "For as much as all the endeavors of the united colonies. particularly of those of Virginia. of government. is carrying on a piratical and savage war against us. uniting and exerting the strength of all America for defence. one hundred and twelve members being present. our people. hers had already gone forth. compelled to join in the plunder and murder of their relations and countrymen. be instructed to propose to that respectable body. abounding in patriotic sentiments. It was indeed. which he had read in his place. but having retired on board an armed ship. we have no alternative left. as will be most likely to maintain peace and order in this colony. our properties subjected to confiscation. tempting our slaves by every artifice to resort to him. By a late act. and secure substantial and equal liberty to the people. And a committee was appointed of the following gentleman: . Mr. In the same breath in which she had declared her own independence. the aid of foreign troops engaged to assist these destructive purposes. and a vigorous attempt to effect our total destruction. resolved unanimously. and sound political doctrines. and out of the protection of the British Crown. at such time and in such manner as to them may seem best.'" This beautiful address. according to order. and training and employing them against their masters. upon just and liberal terms. 1770. clothed in the richest language. as flax that severs at the touch of fire. be left to the respective colonial legislatures. converlite ferrum. resolved itself into a committee on the state of the colony. appealing to the Searcher of all Hearts for sincerity of former declarations. ought to be in the hands of every citizen. But even then. The King's representative in this colony hath not only withheld all powers of government from operating for our safety. or a total separation from the crown and Government of Great Britain. Fleets and armies are raised. absolved from all allegiance to. expressing our desire to preserve our connection with that nation. and had come to the following resolutions thereupon. and such a plan. and all former rapine and oppression of Americans declared legal and just. that the word of power was spoken. that a committee be appointed to prepare a declaration of rights. instead of a redress of grievances. and it was by the voice of one of her sons. where the same were again twice read. According to the order of the day. "The convention. Provided. The voice of her defiance was already ringing in the tyrant's ears. to declare the united colonies free and independent States. May 11th. that the delegates appointed to represent this colony in general Congress. Wherefore. hers was the shout that invited his vengeance: 'Me! me! Adsum qui feci.certainly known. at which the chain that bound the colonies to the parent kingdom fell asunder. Virginia had advised it. and the eternal laws of self-preservation. that the other colonies would take the same decisive step. all the colonies are declared to be in rebellion. The following extract from the Journals of the Convention. and to whatever measures may be thought proper and necessary by the Congress. hers was the cry that summoned him to the strife. expected. that the power of forming government for. and that we are driven from that inclination by their wicked councils. in me. have produced from an imperious and vindictive administration. containing the history of this interesting event. increased insult. and a reunion with that people. and Mr. but an abject submission to the will of those overbearing tyrants. then. and while the terms of the general Declaration of Independence were yet unsettled. and forming alliances with foreign powers for commerce and aid in war. and. whose name will ever proudly live in her history. and a confederation of the colonies. had under consideration the state of the colony. and the regulations of the internal concerns of each colony. "In this state of extreme danger. Unanimously. when captivated. and that they give the assent of this colony to that declaration. or dependence upon the Crown or Parliament of Great Britain. President resumed the chair. for forming foreign alliances. Cary reported that the committee had. after some time spent therein. "Resolved. She had instructed her delegates in the General Congress to urge it. by the most decent representations and petitions to the King and Parliament of Great Britain.
) But the United States must have the "consent of a State. 7. 13. dock-yard. Carrington. 12 Wheaton. and their mutual and general welfare. their Declaration of Independence. independent communities. the United States could have neither a right of soil nor jurisdiction. B. when the several State legislatures made an act of Federation.)" Then there could be no mode by which the United States could acquire either 'the powers of government. unless that of Great Britain should be restored by a reconciliation. in one uniform and consistent series of adjudication. Congress directed that every officer should swear. Mr. Mr. and that she. 94. 590. speaking of them as "so many sovereign and. Blair. a publication of their existing political condition. 74. Thomas Lewis. * * And it was held by this Court. 136. Mr. curtailed or extended. 212. Mr. McIlvaine v. Mr. or a convention of the people. that "I acknowledge the thirteen United States of America. Adams. 522. and Mr. propriety or dominion.. C. Mr. Henry Us. and as declared by this Court. according to the universal opinion of the country. Mr. the security of their liberties." — [C. 400. that "the colonies did not severally act for themselves?" — [C.] 13. (1 Laws U. to be free. namely: New Hampshire. " (or country') 16 as the State of Great Britain. from 1770 till 1781. Taking the relation of the States to each other. Thomas Ludwel Lee." (4 Cranch. the powers of government. for all but Federal purposes. Archibald Cary. which had previously been in Great Britain. "By the treaty of peace with Great Britain." "What then is the extent of jurisdiction which a State possesses? We answer ." "Each declared itself sovereign and independent. a proclamation to the world." and to each respective legislature it is recommended. Some of Its details were afterwards modeled. which not happening.] 15." (Baldwin. on account of religion. for all but Federal purposes". Gilmer. not one State. assembled in Congress by their respective deputies. to 2 Pet. Mr. Congress addressed a circular letter to the respective legislatures of the States. David Mason. but by a cession from the States. Mr. is an inevitable consequence. Mr. Jones. which is most clearly expressed in the language of this Court. custom-house. B. 1: that "the several States are still foreign to each other. according to the limits of their territory." (Baldwin. as ALLIED SOVEREIGNS. Bland. passed definitely to these States. within any particular State. is sufficiently attested In Article III. Tazewell. Banister.' &c." This confederation of 1781 may be regarded as the actual date of the Union. Meriweather Smith. (2 Journal of Congress. Mr. Mr. that the only territory which in fact belonged to the United Stated in 1787 was acquired by the cession from Virginia. Mr. Mr. B. but the principle of allied sovereign States was never changed. Read. independent and sovereign States" The name of each of the thirteen States was named as a distinct sovereignty. Mercer. Coxe. made by the people of a State. Dandridge." It is impossible to contemplate this proceeding on the part of Virginia. each as an independent State. Edmund Randolph.' or the 'right of soil' in any territory. Mr. Page. Judge Baldwin says: "Such was the situation of the States and people." "They declared these united colonies to be independent States.) "As the States are still foreign to each other. Mr. Treasurer. Commenting upon the separate independence of the States. 12. trade. Which was only a league or alliance. Mr. S. of the Confederation: "The said States hereby severally enter into a firm league of friendship with each other for their common defence. 15. Mr.. became absolute. or any other pretense whatever. The language of the Supreme Court is very full in declaring that the colonies did not lose their sovereign independence of each other and become one people by virtue of the Declaration of Independence of Great Britain. 1776. their position an "a single unconnected sovereign power" before and without any confederation between them. Beaty. Starke. in their separate conventions. voting for and signing the instrument by States. by the separate States. Bullit. Mr. &c. 83. Mr. without the least regard to the recommendation or the pleasure of Congress. "No sovereignty did or could exist over them." (Baldwin. from 6 Cr. binding themselves to assist each other against all force offered to. Richard Cary. at least. Mr. or attacks made upon them. Cabell. or any of them. as it exists under the Constitution. Thus the sovereignty of a State over its own territory has not been ceded by the adoption of the Constitution. and these States were independent.) In November of the same year. — [C. * * The Constitution is a cession of jurisdiction only. but by a cession from the State by its legislature. Flaming. 12.) In October. Mr.).) How can such language be reconciled with the idea of Judge Story. 584. C. and the right of soil. Mr. Mr. Digges. C. did "presume" to establish a government for herself. "The authority of this Court is respected." and "purchase from the owners of the soil it before it can build a post-office." (8 Wheaton.Mr. That the Union in 1781 was simply a league of separate sovereign communities. without being convinced that she acted from her own free and sovereign will. Mr. or any other public structure. fort. the Declaration of Independence is to the judicial mind what it is to the common eye.] 14. Watts. Mr.
." (4 Wheaton. The question was brought before the Supreme Court in the case of Fletcher P. 54." When Patrick Henry Indignantly asked. 16. 334. The very phrase shows the Federal Union to be a government of States. made sale of a large tract. 87." In the second section of Article First of the same instrument The idea of severalty or separateness. THE PEOPLE OF THE STATES. Peck.) The right of soil and general jurisdiction over the whole territory. Of consequence. and with respect to their municipal regulations. The phrase." (5 Wheat. 466. they ad in their States. 17. which had ceded none of its territory.) — [C. A UNION OF STATES necessarily implies separate sovereignties. but to "form a MORE PERFECT Union.) Again: "The powers retained by the States proceed not from the PEOPLE OF AMERICA. Is the relation between Russia. 17. C. and bayonet-held Poland aUNION? Is It not an insult and a mockery to call the compulsory relation between England and Ireland a UNION? In all these cases there is only such a union as exists between the talons of the hawk and the dove." The Constitution of the United States is a grant by grantors to a grantee. are to each other sovereign. but it cannot be called a UNION — it is a despotism. 46) " The power having existed prior to the Constitution." (5 Wheaton. 468. is clearly implied. — [C. and what is not given away by cession. free association.without hesitation the Jurisdiction of a State Is co-extensive with its legislative power. WE. The Supreme Court has always been clear enough on this point: "No political dreamer was ever wild enough to think of breaking down the lines which separate the States. 88. but for distinct societies. e. to prove the consolidated nature of Federal Union. "The people of the United States. i. as the Hungarians. neither right can be exercised but by a grant from them. voluntarily acting together. 9. 2 Peters. already possessing distinct systems. But it is surprising that any gentleman capable of comprehending the force of language should make such a mistake as to imagine that the phrase "more perfect union" is implied a consolidation of the States. The United States denied the right of Georgia to make such sale. 99. The phrase "to form a more perfect union" has been sometimes quoted to prove that the new Constitution was designed to alter fundamentally the confederate nature of the Union. not the people of AMERICA." in the preamble of the Constitution. "UNITED STATES" has a very different legal signification to that of consolidated States. 403 McCullough v. 2 Peters. The grantors are the "several States. but the people as composing THIRTEEN SOVEREIGNTIES." in the preamble to the Constitution. the Poles. and remain after the adoption of the Constitution what they were before. Maryland) — [C. B. yet the several States retain their individual sovereignties. 193. on the Yazoo River. C.] 16." (4 Wheaton. C. Thus the Supreme Court of the United States declares that "the States form a confederated government. was invested In the people of each State." not as a consolidated people. not for a consolidated people.' instead of "we. Georgia. this is the grammatical meaning of the phrase. Union is necessarily voluntary — the act of choice." (2 Peters. Baldwin. but then not the people as composing ONE GREAT BODY. and not to the word "people. 375. when they act. Indeed. within the boundaries of the several States." The name of our federation is not CONSOLIDATED STATES but UNITED STATES." It is precisely the same meaning as the phrase "Les Etas Unis" in the French language. The qualifying adjective "united" is annexed to the word states. remains with the States. 203. but as separate and independent sovereignties — "the people" as organized into "several" distinct sovereign communities. still remains with them. and not of the People consolidated." (Baldwin. etc. ' We. but from the people of the SEVERAL STATES.) Thus all authority proven that the Government of the Union Is one of the STATES united. 12 Wheaton. the "states united.] 17. simply. (10 Wheaton. And to bruise these distinct sovereignties into one mass of power is. or between the jaws of the wolf and the lamb. The object was not to sink the Union in consolidation. B.] . The phrase is. (6 Cranch 142. and the Court decided that the title of the land was in Georgia. as a consolidated body. and of compounding the American people Into one common mass.) Referring to the formation of the Union. railed upon by the friends of the monarchist principles of government. "WE THE PEOPLE OF THE UNITED STATES. "What right had the framers of the Constitution to say. to destroy the Union — to overthrow our system of government. has the same meaning as "the people of the several STATES.. the Court held that: "A judicial system was to be prepared. would not be a UNION. as absolute sovereigns of both. Nor can this VOLUNTARY system be changed to one of force without the destruction of "THE UNION. and not having been prohibited by that instrument. A number of States held together by coercion. has been twisted into most absurd shapes.. Madison replied: "Who are the parties to the government? The people." The Austrian Empire is composed of several States. and not of the people of all America. the Italians. the people. the States?'" Mr. and not that of consolidation. or the point of the bayonet. UNION and CONSOLIDATION are words of a very different signification. B.) In 1795. 690.
and dangerous exercise of other powers not granted in the compact. to General Knox. had . was not a government of the whole people. while the other seven had but twenty-seven. of which four States had a majority of two hundred and thirty-one thousand. to John Jay.] 21." Washington perpetually spoke of the ratification of the Constitution asACCEDING to a COMPACT (See letter to Bushrod Washington. and form one nation. In the Constitutional convention. called the Constitution a "COMPACT. but by the uniform language of those who framed and adopted it. Thus four States. four States had a population of one million seven hundred and ten thousand." Such were the ideas which prevailed In the framing and adoption of the Constitution. and are In duty bound to interpose. The basis of our present authority is founded on a revision of the Articles of the present Confederation." In the Eighty-fifth Article of the Federalist." &c. (of amending the Articles of Confederation). with a minority of the people. of New Jersey." Madison: "It Is a compact between thirteen sovereignties. in the Kentucky Resolutions. on this ground. who have sent us here for other purposes? I declare that I never will consent to such a system. surely. This fact proves beyond dispute that the Union is a government of States as independent communities. which. had twenty-four votes in the Senate and ninety-one for President. with a minority of the people. for federal purposes. The basis of all ancient and modern confederacies is the freedom and the independency of the States composing them. which wanted to form a national or consolidated government. there were seventeen States. of which four States had thirty-two. when the first census was taken.18. Hamilton calls the Constitution a "compact." Thus it is certain that the framers of the Constitution thought they were making a "compact between sovereign States. AS STATES. Governor Patterson. and eighty-two for President. We are met here as the deputies of thirteen Independent sovereign States." In the Convention of Massachusetts which adopted the Constitution. 1788. Our commissions give no complexion to the business. there had been a resolution that "A national government ought to be established. and thus ended the business of a national government." This passed overwhelmingly in the affirmative. That. (See Elliot's Debates. In 1790. From the opening of the Convention in May. and to alter and amend them in parts where they may appear defective The object was not to form a new government. to Gouverneur Morris. but they had only eight votes In the Senate and one hundred and one for President.) — [C. though in the minority. In 1810. Madison's and Martain's Reports. the people will approve our proceedings. Mr." and says that thirteen Independent States are "the parties to the compact. Myself or my State never will submit to tyranny or despotism. not only by the organization of the government. says: "The States are not united on the principle of unlimited submission to the General Government. 10. C. Both Hamilton and Madison constantly spoke of the Union as a "compact. There was a party In the Convention. and annihilate the sovereignties of our States. Judge Parsons said: "The government and powers which the Congress can administer are the more result of a compact." In the Resolutions of 1798 he says: "The powers of the Federal Government result from a compact to which the States are parties. while the twelve States. Then four States had a majority of the whole people of two hundred and fire thousand. B. and we cannot suppose that when we exceed the bounds of our duty. B. C. having a majority of the population. — [C." Again says Madison: "In case of a deliberate. the total population was four million two hundred and forty-seven thousand. palpable. was respectable for its intellect." And the INTENTION of the framers and parties to an instrument is the LAW in the case. with a total population of five million seven hundred and sixty-five thousand. This assertion of Judge Story is contradicted. and not of the people as one body. until the 25th of June. of which four States had two million two hundred and twenty-six thousand. July 20. had but eight senators. said: "Let us consider with what powers we are sent here. June 17. Nov." But on the last mentioned date it was moved to strike out this word "National. the States who are parties thereto have the right. form a national government? I fancy not. while the other nine had only one million three hundred and ninety thousand. but of the States as sovereign communities. 1788. When the third census was taken." and Insert in its place "United States. B.) Jefferson. in 1800. as one body. while the nine States.] 19. but they had only eight votes in the Senate. and yet the minority of the people could elect the President and dispense all the powers of the Union. but by that of COMPACT. 1851." Luther Martain said: "The General Government is only Intended to protect and guard the rights of the States. Webster. while the rest. On this occasion Governor Patterson said: "Can we. — [C. there were eleven States having fifty-nine representatives.] 20. When the second census was taken. had eighteen senators. December 14 1789. In his great speech to the young men of Albany. with a minority of population. C. but to "alter and amend" that which already existed. When the Constitution was adopted and the present Union went into operation in 1799. and the other twelve had two million twenty-one thousand. Can we consolidate their sovereignty. 1797.
and. without the least violence. completely demolished the doctrines of Judge Story on that subject. but they had only twelve votes In the Senate and one hundred and twenty-six for President. while the rest had thirty-six votes in the Senate and one hundred and thirty-five for President. Suppose that a like attempt should be made by Massachusetts. In the Federal Government. and being resisted. The effect would be that the United States would possess a right in one State which they did not posses in another. said: "We have rights which the Federal Government must not invade — rights superior to its power.] 24. the Supreme Court has no power to override the decision of the State Court. In the decisions of courts.. Suppose that. which would be denied to Massachusetts. The decisions of the Supreme Court have declared that its jurisdiction is limited by the Constitution. on which our sovereignty depends. The decision of the State Court is final in such cases. Chase. 26. and cannot be lessened nor enlarged by act of Congress. 187. on a writ of error. 448) The Supreme Court has no authority. and not of the people as one population? — [C. Hunter and Martin. I know that the decisions of the Supreme Court on constitutional questions. it should decide against it. 9 Wheaton. 239.) The Supreme Court has no Jurisdiction in any case where a State is the defendant (See Eleventh Amendment to the constitution. the words majority and minority do not apply to the number of people. and being resisted. and the whole machinery of government would stop. by the simple refusal of a part of the States to act. having a majority of electoral votes. dock-yards.twenty-six votes in the Senate and one hundred and fourteen for President.) Where two parties in a State Court set up conflicting titles under the same act of Congress. for Congress cannot transcend the powers entrusted to it in the Constitution. State of Virginia and other cases. At the next census. upon a similar appeal to that court. 433. and showing the absurdity of submitting to courts of justice the decision of controversies between governments. Suppose that Virginia should impose a tax on the arsenals. and the minority of the people. 738. on questions involving their respective rights and powers. 6 Wheaton. This want of uniformity and fixedness. the same court should decide that they had no right to do so. we think. when the work was completed. six States had a majority of two hundred and twenty-four thousand of the total Population. (1 Wash. except where the subject is submitted according to the form presented by law. but to the number of States. Thus.) The original jurisdiction of the Supreme Court is pointed out by the Constitution. of the united States within her territory. that they MAY be otherwise. &c. Virginia would enjoy a right In reference to the United States. the State Courts are supreme. In this extended examination of the rates by which the Constitution of the United States is to be interpreted. In a suit to determine the right. involving the extent and nature of their powers. When the fourth census was taken.] 22. B. laws and treaties of the United States. but there is an . 288.) Many other cases might be named which show the limited jurisdiction of the Supreme Court of the United States. renders the Supreme Court the most unfit umpire that could be selected between the Federal Government and the States. C. Judge Upshur has. 23. the Supreme Court should decide in favor of It. 6 Wheaton.. B. 264. 2. So absolutely Is the Federal Government dependent on the States for its existence at all times. It is enough for the purposes of the present argument. and that. in 1820. and that it has no power of acting.) The Supreme Court has no authority to issue a habeas corpus in the case of persons held by the action of the State Court. speaking of the sovereignty of the State of Ohio in 1854. have been very consistent and uniform. should refuse to appoint electors of President mad Vice-President. 175. but the majority of States. (9 Wheaton. that It may be absolutely dissolved. Can anything more be required to prove that the Union is a government of States as separate bodies. 5 Peters. 732. Cohen v. If. Overall matters which the States have not delegated to the Federal Government. 25. the other eighteen had but three million six hundred and fifty-seven thousand. there would be no constitutional Executive. (3 Wheaton. while they had but twelve votes in the Senate and one hundred and thirty-six for President. a few States. Other cases may be supposed. had thirty-six senators and one hundred and fifty-three votes for President. Then six States had a majority of five hundred and forty-two thousand of the people. the present Chief Justice. the Supreme Court should decide that they had a right to do so. to declare a law of a State void on account of its collision with the Constitution of that State. for example. It has jurisdiction over no matter which the States have not delegated in the Constitution. "Such a proposition necessarily follows from the limited nature of the Federal Government — [C. but that affords no proof that they will be so through all time to come. a similar attempt should be made In Massachusetts. (3 Peters. involving like consequences. Suppose that the United States should resolve to cut a canal through the territory of Virginia. (1 Cranch. Mr. 1830. C. six States had a population of four million one hundred and ninety-nine thousand.
— [Ed. It." (4 Wheaton. and not according to any subsequent definition. yet the spirit is to be collected chiefly by the words. 898." (a Wheaton. Elsewhere we have shown that such was the understanding of those who framed the Constitution of the Imitates when they adopted it. (4 Wheaton. B. "it was not intended to use language which would convey to the eye one idea.) Any subsequent construction of a law or instrument not in agreement with the settled intent of those who framed 14 is to be disregarded. and indeed of judicial proceedings among all enlightened nations. and after deep reflection impress on the mind another. (1 Peters. 2 Peters. by substituting the passions and fancies of the people to its place. The terms and language must be referred to the time of its enactment.) Thus the Constitution of the United States must be explained as those who made and framed it intended.) The intention of the framers of the Constitution was that it should continue as they framed it. 714. — [C. it was not designed as a temporary agreement. by leading journals. Mr.) Its language is to be taken in its natural and obvious sense. We sometimes hear such phrases as "New views of the Constitution. It has made the whims and the passions of a political party superior to the Constitution of our country. that laws and compacts are to be construed so as to be in harmony with the "will of the people. This speech was made in Congress in deliberating on the Articles of Confederation. C. Since this last date a change has come over the spirit of the judiciary which is in violation of all the past rules of interpretation. 1. The doctrine has been boldly proclaimed. but in the old views of those who made it. (6 Wheaton." or in "progressive ideas" of its import. 8 Dallas. amounts to the overthrow of all fixed and regular governments." and judges have.important principle to be applied in the interpretation of all compacts and legal instruments which has not been made sufficiently plain. 60. but as an everlasting law.] 27. succumbed to this monstrous delusion. 5 Cranch. B] . It amounts to the abrogation of all organic law. It is the rule laid down by Blackstone. We are to take into consideration the condition of the country at the time the Constitution was framed and adopted. and the settled judicial and professional opinion immediately following its adoption. indeed. 281. 69." and "Progressive ideas of the Constitution. 83. that the intention of the parties to a compact to the key to its meaning. 418." But we are to seek for the meaning of that instrument. (1 Wheaton. and must be taken as understood by those who so employed them.] 28. in too many instances.) "Its spirit is to be respected not less than its letter. 410. 262. This rule has been often affirmed by the Supreme Court. 415. Their INTENTION is the LAW. and leaves the passions and fancies of an hour the only guarantees of liberty. 326. C. and not in any novel and new construction. (1 Blackstone. Adams was not a member of the convention.) Such were the rules by which the Constitution was interpreted by the Supreme Court undeviatingly from the foundation of the government to 1863. — [C. not in "new views.
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