Page images
PDF
EPUB

nies, to adopt governments for themselves, 158; taken with the original resolution, as agreed to on the 2d of July, as follows:

Resolved, “ That these United Colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British crown; and that all political connection between them and the state of Great Britain, is, and ought to be, totally dissolved.” 2 Journ. 227. It may well be asked, in the words of congress, in December preceding, “Why all this ambiguity and obscurity, in what ought to be so plain and obvious, as that he who runs may read.” “What allegiance is it that we forget? Allegiance to parliament? We never owed, we never owned it. Allegiance to our king? Our words have ever avowed it; our conduct has ever been consistent with it." 1 Journ. 263.

Now it is very immaterial what form of a declaration was adopted two days afterwards; when congress, for a fourth time, declared the rights and wrongs of the colonies, and their actual condition after an open annunciation of an existing war between the king and state of Great Britain and these United Colonies, then independent states.

THE DECLARATION OF INDEPENDENCE. It was announcing what had been done, and the causes for doing it; and must be taken to have been done, on the principles declared from the beginning of the complaints and struggles of the colonists, to throw off the pack; it declared the pack removed, and the boys freemen.

The result was obvious, and was so declared, “the thirteen colonies of Great Britain," thereby became “the thirteen United States of America;” connected in a war for their defence, but not confederated by a government, to make laws for, or to put a pack on them.

A comparison of this declaration, with the counter-declaration of parliament, as contained in 1 Bl. Com. 109, (a book then in quite as familiar use as now, and that was evidently under the eyes of congress at the time, will show their meaning : " that all his majesty's colonies and plantations in America, have been, are, and of right ought to be, subordinate to, and dependent upon, the imperial crown and parliament of Great Britain." Congress declared that, these colonies are, and of right ought to be, free and independent states." Not all his majesty's colonies in America, for Canada and Nova Scotia were no parties to the declaration; not that these colonies had been free, for they admitted they had been dependent, and the people had been the loyal and faithful subjects of the king; hence the words were appropriate. These colonies, (now) are, and of right ought to be, not subordinate and dependent, but free and independent states.' The same author defined what the state of Great Britain” was. “A state, a realm, a nation, an empire; the supreme head whereof, is "the king; inferior to, accountable to, and dependent on no man upon earth;” “as sovereign and independent within these his dominions, as any emperor is in his empire,” (the imperial dignity, 1 Journ. 65.) “and owes no subjection to any po

tentate upon earth,” i Bl. Com. 242; or, in the language of this Court, “ a single sovereign power," 6 Cr. 136. The transition was from this condition of a colony, to that of a state; from subordination to freedom; from dependence to independence. The declaration in its front was, by the thirteen states who had been colonies, were then what they were declared to be; and the name and style of each was separately affixed at the foot, as united by the style of the United States of America, as they had been since 1774, by that of the United Colonies, &c.

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; or making with the state, or nation, of the United States, a political connection, similar to that which had existed with the state of Great Britain.

A state, to be free, must be exempt from all external control; on a 6 separate and equal station with the other powers of the earth;” within whose territorial limits, no state or nation can have any jurisdiction: this is of the essence of freedom, and being free, in the grant and exercise of legislative power at their pleasure, a state, and the people thereof, must have the absolute sovereignty, illimitable, save by the people themselves. Such was the situation of the states and people, from 1776 till 1781, when the several state legislatures made an act of federation, as allied sovereigns, which was only a league or alliance; and being utterly defective, was substituted by a new act of federation; a constitution, ordained by the people of the several states, in their primary inherent right and power, existing in themselves; before any portion of its sovereignty had been impaired by any act of federation, or any severance from its territorial boundary.

THE CONSTITUTION IS A GRANT BY THE PEOPLE OF THE SEVERAL

STATES.

So taking the power which ordained the constitution, it can be traced in all its provisions and amendments, in perfect consistency with its preamble and mode of adoption; it is the same power which was exercised by the people of the colonies, when they abolished the royal governments, and established new ones by their own authority as states; and by which they abolished the confederation, and ordained the constitution. Viewed in all its bearings, as a grant, a charter, conveying and restricting the exercise of power, providing for its

own amendments, and the amendments made pursuant thereto; the people of the several states are seen in all its movements; their acts are referrible to no other power; and the existence of any authority, not subordinate to theirs, deranges the whole system.

When it is so considered, without any theory but that which is developed in the English system of jurisprudence; which, in all its parts, is infused into all our institutions of government; there is no difficulty in finding out its intention by the settled rules of interpretation. We can understand the federal and state system in their origin, organization, and operation, as the work of the same hand; which, in the institution of one government for state purposes separately, and another for the federal purposes of thirteen united or confederated states, has acted in separate bodies; and can ascertain what it has granted, how far it has restrained itself, and measure the grant by its exceptions and reservations.

There never has been, or can be any difference of opinion as to the meaning of the ordaining parts of the constitution in the terms, the people of the several states;" the several states which may be included in this union;" each state;" for they do not admit of two meanings. They refer to those states which, having ratified the constitution, are each a constituent part of the United States, composing, by their union, the United States of America; and to the people of each state, as the people of these United States. When terms are so definite in the body of an instrument, and one less definite is used in the preamble, which can be made equally definite by reference, the established maxim applies—id certum est quod certum reddi potest.Let then the term, We, the people of the United States, be referred to the second section of the first article, and compared with the terms, “ the people of the several states;"

;" the several states which may be included within this union;" the sense of both is identical. So, when we refer the terms to the seventh article, prescribing the manner of ordaining and establishing the constitution, there is the same identity of meaning. No other variance exists between the terms in the preamble and body, than exists in other terms which are varied in form, but are the same in substance, and used in the same intention; as, “ each stute;"

;" the several stutes ;the several states which may be included within this union; the United States; the United States of America; a congress of the United States; the congress; congress,” &c. When the various parts of an instrument can be made to harmonize, by referring the supposed doubtful words of one part to the certain words of another, without doing violence to their appropriate sense; every just rule of construction calls for such reference as will remove ambiguity: if the two terms cannot be reconciled, it is a settled rule, that the preamble is controlled by the enacting part. No case can arise to which these rules can be more applicable, and there is no discrepancy between the different terms; one is less full and explicit than the others, the name given to the granting power is not its substance; the thing is the power; when

ever that is clearly defined, the name will be made to suit it. If this term in the preamble was, by common consent, or the settled course of professional and judicial opinion, taken as a mere name given to a thing of an agreed determinate nature, it would be a waste of time to inquire whether the name was appropriate to the thing; or whether the reasoning, which makes the action of thirteen distinct bodies, at so many different times and places, produce the same result, as the action of one on the same object, and may be deemed in legal contemplation, the sole action of one body, was metaphysical or sound; for it would be merely a discussion on words, which would not determine the sense of the constitution as to substance and things. That the states acted in the same distinct and separate capacity, in the creation of the government, as they did, and yet do in selecting their agents who administer its powers, is apparent in the seventh article, before quoted.

The mode of action was by the people of each state, in conventions of delegates chosen by themselves; the action of the separate conventions being, by their express authority, delegated for the special purpose, was the action of the people. The grant was theirs, of their powers; and thus made it was in perfect harmony with all the provisions in its body, and as declared in its front; that, “ We, the people of the United States, do ordain and establish this constitution for the United States of America.” The meaning is clear and plain, by a reference to the people of each of those states who ratified it in convention, and to the people of the several states who were to elect the representatives of the state, in a congress of the United States; the same people performing different functions, the first in creating, the second in organizing the government of the states, which had been thus established between themselves.

In so taking the declaratory part of the instrument, it harmonizes throughout; no violence is done, or a strained construction put to any part; every word has its own meaning, when it is referred to its subject matter of application; power flows from its original and acknowledged fountains, and is distributed by each depository, among the appropriate agents for its execution. It is the same power which had been exerted in the institution of a government for each state; was competent to do so for the states, which were united by an alliance of mere confederation, without any legislative power in their congress; by making any change which an organic power, absolute and unlimited, could effect, and which this Court has often declared it did effect in its exertion by separate bodies. If it was so taken as settled doctrine, it would be easy to expound the instrument in which this power was exerted, as a charter or grant, ex visuribus suis, the law at the time it was made, the common, the statute, and constitutional law of England, the history and state of the times then and before, the acts of the people, the states, and of congress, in their domestic and foreign relations, in some of which sources there would be found satisfactory means of its interpretation.

Three of these cases turn on those clauses of the constitution

which restrain the states; the fourth depends, in my opinion, on those which are reserved by the tenth amendment: so that none can be decided, without identifying the power which made the grant, restrictions and reservations, by an original, inherent sovereign right, and which was competent for all these purposes. The preamble declares, that “ We, the people of the United States, &c. do ordain and establish this constitution for the United States of America." That it was done by the power of the people, and not of the state legislatures is universally admitted; as also that they had the competent power to do it. The only question which is open is, whether this power was in the people of the separate states, as separate bodies politic, or in the whole people of the United States, as one.

mass.

THE OPINIONS OF THE COURT APPLIED TO THE PROVISIONS OF THE

CONSTITUTION. This Court, as the appropriate tribunal for expounding the constitution, has used various terms to express their sense of the term; as, The people of the United States, in 1 Wh. 324. The people of America, 4 Wh. 193. The American people, 4 Wh. 403. 6 Wh. 377, 381. It is deemed a term of “becoming dignity,' suited to the solemnity of the occasion and instrument. 2 Dall. 471; 12 Wh. 354. But when they use the term, and describe how the people acted, and by what acts the instrument was adopted, they add this expression; which one would think was in language comprehensible and clear, excluding all construction, and admitting of no two-fold meaning or interpretation : "No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common

Ofd

consequence, when they act, they act in their states.” 4 Wh. 403; M*Culloch v. Maryland.

Here is a declaration, that the organic power was not a compound mass of the people in their states. In a subsequent part of their opinion, they declare that the same power which established, is the same which is represented in, and exercised by congress, as well as what that power is, and in what body politic it was, is, and of right ought to be. The people of all the stotes, have created the general government, and have conferred upon it the general power of taxation. The people of all the states, and the states themselves, are represented in congress, and by their representatives exercise this power.” 4 Wh. 435. In the same case they had explained the difference between the people of the states, and the states, or state sovereignties, state legislatures, or, as they afterwards called it, the supreme power; all meaning the same thing, when referred to the power of the state, as exercised by the legislatures thereof. 12 Wh. 347. (Vide 1 Bl. Com. 147, p. 52.)

“ To the formation of a league, such as was the confederation, the state sovereignties were certainly competent. But when in order to form a more perfect union, it was deemed necessary to change the alliance into an effective government, possessing great and sover

« PreviousContinue »