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THE NATURE AND ORIGIN OF THE FEDERAL GOVERNMENT, AS DE

CLARED BY THE CONVENTION OF 1787, AND BY THIS COURT. The political history of our country presents a narrative of one continued struggle between the states and the confederacy, either for territory or political power.

At an early period of the war of the revolution, the question whether the vacant lands which lay within the boundaries of particular states, belonged to them exclusively, or become the joint property of all the states; was a momentous one which convulsed our confederacy, and threatened its existence; but it has been compromised, and is not now to be disturbed. 6 Cr. 142; 5 Wh. 376. It was settled by cessions by particular states, and the adoption of the articles of confederation. Vide post. When that was done, the question of power arose out of the incompetency of congress to effectuate the objects of its adoption; the collision of opinion was not what were the relative powers of the several states and of congress; for it was then admitted that what was not expressly delegated, was retained by and remained in each state. That a new government was necessary was the universal opinion; but the difficulty was, in agreeing what additional powers should be given to congress by the surrender of the states; no statesman or jurist pretended that this could be done in any other way than by the voluntary act of the separate states; in their sovereign capacity, by the people in conventions.

This difficulty did not cease by the unanimous act proposed by the general convention. In their letter submitting it to congress, we find them stating the same reasons which embarrassed their action, and long delayed its ratification by the states. “It is obviously impracticable in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all.” “It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved; and on the present occasion, this difficulty was increased by a difference of opinion among the several states, as to their situation, extent, habits, and particular interests:" 6 and thus the constitution which we present, is the result of a spirit of amity, and of that mutual deference and concession, which the peculiarity of our political situation rendered indispensable.” 1 Laws U. S. 71.

There can be no misunderstanding of the meaning of this letter, that the convention had proposed the frame of a “federal government of these states,” to be created by a surrender of the necessary powers by the several states, to be made by the people in separate conventions; so as to make the constitution paramount to those of the states, and not leave the powers of congress dependent on a grant by the legislature, which the people could revoke or change. So it has been considered by this Court, in a most elaborate opinion.

66 This mode of proceeding was adopted; and by the convention, by con

gress, and by the state legislatures, the instrument was submitted to the people.” “ They acted upon it in the only manner in which they can act, safely, effectively, and wisely, on such a subject, by assembling in convention; it is true they assembled in their several states, and where else should they have assembled? 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 mass. Of consequence, when they act, they act in their states. But the measures they adopt, do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments. From these conventions the constitution derives its whole authority. The assent of the states, in their sovereign capacity, is implied in calling a convention; and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it, and their act was final. It required not the affirmance, and could not be negatived by the state governments. The constitution, when thus adopted, was of complete obligation; bound the state sovereignties; and the government proceeded directly from the people.” 4 Wh. 403, 4.

Neither in this, or any other opinion of the late Chief Justice, will there be found an expression like that of “the people in their aggregate or collective capacity,” being the constituent power of the government; it will not be found in any act of any state legislature, convention, or congress; while every declaration by either asserts all power to be, and to have been, in the people of the several colonies or states. Every fundamental principle of that government, from which all ours have been mainly patterned; every movement of the people of both countries, in convention of their representatives; explodes the doctrine. So, too, the concurring declarations of this Court, sufficiently numerous to establish a code on any other subject, have indicated and made visible to the most ordinary capacity, the organic power which created, and was alone competent to create government. In one of their opinions, delivered twenty-five years since, they little imagined the present clouds which hang over the knowledge of those bodies, in which that power was vested. “The course of reasoning which leads to this conclusion, is simple, obvious, and admits of but little illustration. The powers of the general government are made up of concessions from the several states; whatever is not expressly given to the former, the latter expressly reserves;" 7 Cr. 33; United States v. Hudson and Goodwin.

It is but reasonable, that this coincidence between the terms of the instrument, the cotemporaneous declaration of those who framed it, the action upon it by congress, state legislatures and conventions, and the exposition of all that was done, as given by this Court; would have led to the universal conviction, that the words and terms used were intended and must be taken in their declared sense.

But as it has not sufficed to produce this effect, it becomes indispensable to recur to those acts of the colonies, the states, and congress; from

THE DECLARATION

which the conclusion has been drawn, that the grantor of the constitution, was not the people of the several states. THE PROCEEDINGS OF THE CONGRESS OF 1774.

OF THE RIGHTS OF THE COLONIES AND COLONISTS. From the preceding view of the colonies prior to 1774, and while the ancient relations between them and the mother country continued, it is most manifest that they were as separate from each other, in all matters of internal government, as they now are. Their only political connection was by their union under one common sovereign, as it is now under the constitution; their governments were in virtue of separate charters then, as they are now under their several constitutions; and no one, or any number of colonies, had any more power within their limits, than the states have now. No other controlling power did, or could exist then, under the old constitution of the kingdom, than does now under that of the Union, save such as it imposed.

Though they had assembled in congress to consult on their common concerns, they had never made a government over themselves; and when they met in 1774, their proceedings showed in what capacity they acted. They first resolved, that each colony should have one vote, which was an explicit declaration, that they acted separately in all they did; their declaration of rights and resolutions are also too unequivocal for any double or doubtful meaning to be attached to them.

After reciting the grievances suffered in consequence of certain acts of parliament, and of the crown, they declare the character and authority under which they act. “ The good people of the several colonies of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, New Castle, Kent, and Sussex on the Delaware, Maryland, Virginia, North Carolina, and South Carolina, justly alarmed at these arbitrary proceedings of parliament and administration, have severally elected, constituted, and appointed deputies, to meet and sit in the city of Philadelphia, in order to obtain such establishment as that their religion, laws, and liberties, may not be subverted."

“Whereupon, the deputies, so appointed, being now assembled, in a full and free representation of these colonies, taking into their most serious consideration the best means of attaining the ends aforesaid; do, in the first place, as Englishmen, their ancestors, in like cases have usually done, for asserting and vindicaling their rights and liberties, declare,(Vide ante, p. 44.)

“That all the inhabitants of the English colonies in North America by the immutable laws of nature, the principles of the English constitution, and their several charters and compacts, have the following rights:"

Resolved, N. C. D. 1. That they are entitled to life, liberty and property; and they have never ceded to any foreign power whatever, a right to dispose of either without their consent.

"Resolved, N. C. D. 2. That our ancestors, who first settled these colonies, were, at the time of their emigration from the mother country, entitled to all the rights, liberties, and immunities of free and natural born subjects within the realm of England.”

Resolved, . C. D. 3. That by such emigration they by no means forfeited, or surrendered, or lost any of these rights; but that they were, and their dependents now are, entitled to the exercise and enjoyment of all such of them, as their local and other circumstances enable them to exercise and enjoy.'

Resolved, N. C. D. 4. That the foundation of English liberty, and of all free government, is a right in the people to participate in their legislative council; and as the English colonies are not represented, and from their local and other circumstances cannot properly be represented in the British parliament, they are entitled to a free and exclusive power of legislation in their several provincial legislatures, where their right of representation can alone be preserved, in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed. But.from the necessity of the case, and a regard to the mutual interest of both countries, we cheerfully consent to the operation of such acts of the British parliament, as are bona fide restrained to the regulation of our external commerce; for the purpose of securing the commercial advantages of the whole empire to the mother country, and the commercial benefits of its respective members, excluding every idea of taxation, internal or external, for raising a revenue on the subjects in America without their consent.”

Resolved, N. C. D. 7. That these his majesty's colonies are likewise entitled to all the immunities and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws.'

"All and each of which the aforesaid deputies, in behalf of themselves and their constituents, do claim, demand, and insist on, as their indubitable rights and liberties; which cannot be legally taken from them, altered or abridged, by any power whatever, without their own consent, by their representatives in their several provincial legislatures.' i Journ. Cong. 28, 9.

An association was formed and signed by the members from the different colonies, beginning, “We, his majesty's most loyal subjects, the delegates of the several colonies of New Hampshire,&c. &c. “And therefore we do, for ourselves and the inhabitants of the several colonies whom we represent, firmly agree and associate under the sacred ties of virtue, honour, and love of country, as fol

1 Journ. 32. The letter to the people of Great Britain was headed in the same manner, and signed by the delegates of the several colonies. 1 Journ. 36. So were their other letters and addresses at that time, 62.

These proceedings cannot be mistaken in the distinct assertion, that all the powers of government were vested in the several pro

lows.”

vincial legislatures, subject only to the restraints mentioned in the fourth resolution. There was no state or nation, to which the several colonies stood in the same relation, as the counties and towns of England did; they had no separate powers of government within a county, &c.; the aggregate population composed the state or nation, so did the population of a colony, so now does that of a state. The counties, cities, and townships thereof, exist only for local purposes, have nothing to do in matters of government, except to elect representatives to the legislature of the state or colony, to whose laws they are subject. Hence there can be no analogy between the people of the different districts of a colony, who are the people of the colony, and the colonies themselves in their political capacity, and the people thereof separated from all others by territorial boundaries. To unite them as one, is to erase the line of separation, and make one colony and one legislative body out of thirteen, acting by the power of one people, inhabiting the former divisions, and the separate colonies, as merely the counties of the one. Let us suppose, that in the congress of 1774, an additional resolution had been offered to this effect.

Resolved, N. C. D. That these thirteen colonies are one nation, the people thereof one people, and that this congress is a national government, as the representatives of the one people, having the power of enacting laws to bind the said thirteen colonies and the people thereof, without their separate consent:" it need not be asked what would have been the result.

THE ACTS OF THE CONGRESS, THE STATES AND PEOPLE, IN 1775, AND

1776. The spirit and principles of this declaration were adopted by the colonies and congress. In October, 1775, congress, on the application of the provincial convention of New Hampshire, recommended them to call a full and free representation of the people, to establish such government as they thought proper, to continue during the dispute with Great Britain. 1 Journ. 206, 15. This was done in a convention of the people in January, 1776, by a constitution which remained in force till 1784; declaring the dissolution of all connection with the British government, and “assuming that equal rank among the powers of the earth, for which nature had destined us, and to which the voice of reason and providence loudly called us." Vide 2 Belk. Hist. N. H. 303, 5, 9, 335.

The royal government had ceased in South Carolina in September, 1775, under the recommendation of congress in November: 1 Journ. 219: the people of that state formed a constitution in March, 1776, which all officers were sworn to support, "till an accommodation with Great Britain, or they should be released from its obligation by the legislative authority of the colony.2 Drayton's Mem. 171, 186, 196.

In April, 1776, congress resolved, “that trade was subject to such duties and impositions as by any of the colonies, and such regulations as may be imposed by the respective legislatures,” &c., which

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