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some power, paramount over, or from the people of the several states themselves. We search the constitution in vain, to find the existence or recognition of such power paramount; there is no function which it can perform; it can control no action by the government, or any of its departments. The whole frame of the constitution can be deranged; the structure of government, with all its powers and prohibitions, may be prostrated by amendments, save that “no state shall, without its consent, be deprived of its equal suffrage in the senate,” according to the provisions of the 5th article, which require the invocation of no power, paramount to that which can operate with such force.
The powers not delegated to the United States, or prohibited to the states, are, by the tenth amendment, “reserved to the states respectively, or to the people.” These terms, "states," "states respectively,” and “the people,” to whom this reservation is thus made, have been defined by this Court, too clearly, and too often to be mistaken, or to remain open for discussion, while its authority is respected.
STATE,” AND “ UNITED STATES,” AND
PLE,” DEFINED AND EXPLAINED. In Fletcher v. Peck, this term is applied to a state, as existing independently of any restraint; "a single sovereign power;" and to a state as one of the United States, under the federal connection between them, it is thus qualified.
“But Georgia cannot be viewed as a single unconnected sovereign power, on whose legislature no other restrictions are imposed than may be found in its own constitution. She is a part of a large empire. She is a member of the American Union, and that Union has a constitution, the supremacy of which all acknowledge, and which imposes limits to the legislatures of the several states, which none claim a right to pass.” 6 Cr. 136.
The political situation of the United States, anterior to the formation of the constitution, and the change effected by its adoption, is better illustrated in the language of this Court than it can be in mine.
“ It has been said, that they were sovereign, were completely independent, and were connected with each other only by a league. This is true. But when these allied sovereigns converted their league into a government, when they converted their congress of ambassadors, deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature, empowa ered to enact laws on the most interesting subjects; the whole character in which the states appear, underwent a change, the extent of which must be determined by a fair consideration of the instrument by which that change was effected.” 9 Wh. 187. Here, then, we have a power which was single, sovereign, and unconnected; with a legislature unrestricted, converting a congress into a federal legislature, which was fully competent to erect it. What were names
and things, had been before taught by the same instructor. “ This term United States, designates the whole American empire." It is the name given to our great republic, composed of states and territories; 5 Wh. 514; “ constituent parts of one great empire;" 6 Wh. 414; who have formed a confederated government;" 12 Wh. 334; 2 Pet. 590, 1; by the act of the people of the “ great empire,” the “great republic,” the “ American empire,” the United States. “ The people of America,” “the American people,” “the people of the United States," are but terms and names, to designate the grantor of the thing, which was thus formed, by the people, of the constituent parts; the thing, the power which formed it, by a thing, this constitution, established by the ratifications of nine things, conventions of nine states, by the people of each as a state.
“ These states are constituent parts of the United States. They are members of one great empire,” (“members of the American confederacy;" 2 Pet. 312,) “for some purposes sovereign, for some purposes subordinate.” 6 Wh. 414. The political character of the several states of this Union, in relation to each other, is this: “For all national purposes, the states and the citizens thereof, are one; united under the same sovereign authority, and governed by the same laws. In all other respects the states are necessarily foreign to and independent of each other. “They form a confederated government; yet the several states retain their individual sovereignties, and with respect to their municipal regulations, are to each other sovereign.” 2 Pet. 590, 1; 10 Pet. 579. S. P.; 12 Wh. 334. “ The national and state systems are to be regarded as one whole." 6 Wh. 419. “In America, the powers of sovereignty are divided between the government of the Union, and those of the states. They are each sovereign with respect to the objects committed to it; and neither sovereign with respect to the objects committed to the other.” 4 Wh. 410.
“ The powers of the states depend on their own constitution; the people of every state had the right to modify and restrain them according to their own views of policy or principle; and they remain unaltered and unimpaired, except so far as they were granted to the government of the United States. These deductions have been positively recognised by the tenth amendment.” i Wh. 325. powers retained by the states, proceed not from the people of America, but from the people of the several states, and remain after the adoption of the constitution what they were before, except so far as they may be abridged by that instrument.” 4 Wh. 193. S. P.; 5 Wh. 17, 54; 9 Wh. 203, 9. “ In our system, the legislature of a state is the supreme power; in all cases where its action is not restrained by the constitution of the United States.” 12 Wh. 347. “ Its jurisdiction is coextensive with its territory, coextensive with its legislative power,” 3. Wh. 387;” and “subject to this grant of power, adheres to the territory as a portion of sovereignty not yet given away.” The residuary powers of legislation are still in the state. Ib. 389 “ The sovereignty of a state extends to every thing
which exists by its own authority, or is introduced by its permission."
6 Wh. 429; 4 Pet. 564. “The jurisdiction of the nation within its own territory, is necessarily conclusive and absolute; it is susceptible of no limitation not imposed by itself. Any restriction upon it derived from an external source, would imply a diminution of its sovereignty, to the extent of the restriction, and an investment of that sovereignty to the same extent, in that power which could impose such restriction. All exceptions therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source." 7 Cr. 136.
In comparing these expressions of the Court with those of the old congress, it will be seen how perfectly they accord with each other in the use of terms. 66 The constituent members," i Journ. 61; the “state," from which we derive our origin, 66; our fellow subjects in any part of the empire," 138. “ Societies or governments, vested with perfect legislatures, were formed under charters from the crown, and an harmonious intercourse was established between the colonies, and the kingdom from which they derived their origin,” 134, 141: “We mean not to dissolve that union, which has so long and so happily subsisted between us,” and have no design “of separating from Great Britain, and establishing independent states," 138. “The union between our mother country and these colonies,” &c.; "your loyal colonists,” doubted not but that they should be admitted with the rest of the empire,'' &c., 140; "the British empire," 141; "the whole empire," 147, 8; “the state of Great Britain;” “North America," "wishes most ardently for a lasting connection with Great Britain," 149. “America is amazed," &c., 171; “The several colonies of it," &c., 27; "these colonies;" “the English colonies in North America;" “the respective colonies,” 159, 60; “these his majesty's colonies," 289. - The United Colonies of North America,” 134. The colonies of North America, 139. The twelve United Colonies, 142, 156, 7. Twelve ancient colonies, 149. Twelve united provinces, viz: &c., 152. The inhabitants and colonies of America, 153. The united colonies of North America, &c., 168. A congress, consisting of twelve United Colonies, assembled, 169. The thirteen United Colonies in North America, 263. these are mere names, and the different terms of designation, which mean the same thing; so as to the name and term applied to the people of a state, kingdom, empire, or colony.
“ The people of America,” “the good people of the several colonies of North America,” &c., 27; "the inhabitants of,” &c., 28; "the people;" “ English colonists;" Ib. “ Americans," “ the people of Great Britain," “ the inhabitants of British America,” 30, 36, 145.
Proprietors of the soil of America,” 37; “faithful subjects of the colonies of North America,” 63; “ your faithful people in America;” “your whole people," 67; "the good people of these colonies, 137, 139; "your loyal colonists,” 141, 147; “ the people of twelve ancient colonies,” 149; “ the people throughout all these
provinces and colonies," 170, 168, 264; "the people of these united colonies," 265.
These references suffice to show how names and terms are used by statesmen and judges, by congress, and this Court. It needs no reasoning to show, that the varied phraseology in the same political act, or judicial opinion, or in different ones, at different times, cannot change the thing referred to.
There is no difficulty in defining a state or nation. It is a body politic, a political community, formed by the people within certain boundaries; who, being separated from all others, adopt certain rules for their own government, with which no people without their limits can interfere. The power of each terminates at the line of separation; each is necessarily supreme within its own limits: of consequence, neither can have any jurisdiction within the limits of another, without its consent. The name given to such community, whether state, nation, power, people, or commonwealth, is only to denote its locality, as a self-governing body of men united for their own internal purposes, if two or more think proper to unite for common purposes, and to authorize the exertion of any power over themselves, by a body composed of delegates or ambassadors of each, they confederate. Each has the undoubted right of deciding, what portion of its own power, it will authorize to be exerted in a meeting, assembly, or congress, of all; what it will restrain, prohibit, or qualify. If this can be done by common consent, the terms of their union are defined, and according to their nature, they form a mere confederacy of states, or a federal government; the purposes and powers of which depend on the instrument agreed upon. If they cannot agree, then each state instructs its delegates according to its own will, and sends them to the body in which all the states are assembled by their deputies: each state is considered as present, and its will expressed by the vote of its delegates. The congress of states are left, in such case, to perform such duties as are enjoined, and execute such powers as are given to them, by their respective and varying instructions; the extent of which is testified in the credentials of the separate delegations, as before the confederation of 1781.
It is not necessary to give efficiency to the acts of the congress, that their power be derived from one state, nation, or people; if they are authorized by each to act within their boundaries, they can act within and on the whole; this action of congress does not make the states, or the people thereof one; they remain as distinct as before any confederacy; but congress, acting as the common legislature of each, for specified purposes, its laws operate in and over each state, as state laws do for state purposes. The power exercised is derived from the same people, who distribute it between the two governments, as they may think most conducive to the welfare of each and all; the machinery is simple, one moving perpetual power directs two machines, which will operate in harmony, by the lines of separation, drawn by the same hand. But if the line and rule are placed in one hand, guided by a master spirit, with controlling power over
thirteen subordinate ones; the one declares what are federal purposes, delegates federal powers, restricts states, and prohibits state laws, by its single sovereign power; and as to its own will and pleasure shall seem fit. The lines of separation between the states are effaced; the people of all are “compounded into one mass, having such supreme power as they may choose to assume; leaving the states and people in their distinct capacities, only that portion of sovereignty which remained in them, after the paramount power had taken to itself all it wanted; and had denied to the governments of the state the exercise of such powers, as the government of the Union could not use; annulling or restraining them, according to the supreme law, which was competent to effect whatever it ordained.
If such was the power which created the constitution, then our federal system is like the solar; one sun, with as many planets as there are “the several states, which may be included within this Union:” with both systems alike created and put in motion, by an invisible, incomprehensible, but almighty power, behind and beyond them both, which can regulate and control the movements of all, at its sovereign will.
Such a political creation may be a sublime conception; present “ the august spectacle of an assemblage of a whole people, by their representatives in convention;" “ conscious of the plenitude of their own proper sovereignty, declaring with becoming dignity, We, the people of the United States, do ordain and establish this constitution for the United States of America.” Vide 12 Wh. 354; 2 Dall. 471.
There is no American, who, in looking to the blessings which the establishment of the constitution has diffused over the whole Union, can repress those feelings, which, like an inspiration, carry the mind beyond the regions of fact, to those of fancy and imagination; and no man more than the first, and the late Chief Justice of this Court, would give way to the effusions of their patriotism, when contemplating the glorious results of the happy consummation of a revolution, in which one had devoted his time and labours to his country, and the other pledged his life for her defence. Yet, when we descend from fancy to fact, look to the convention, in which the people did assemble, how they acted, what they did, the work which came finished and perfect from their hands, and the scenes of action; there is indeed a moral grandeur and sublimity in the whole, which impresses itself on the mind with irresistible force.
Cool reflection, however, corrects the impressions of enthusiasm, reason and judgment concurring with more exciting impulses, convince us; that though the occasion and the act were of imposing grandeur and dignity,august in contemplation, and sublime in its beneficent results; yet, like the constitution, and its best expositor, that these impressions are stamped on the mind, by the simplicity, rather than the splendour of exhibition.