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tion; and all acts which had declared and defined it previous to the treaty, related back to 1776.
Such being the relations of the several states, in their federal and foreign concerns, it follows, that as to their internal concerns, they were in the same attitude of absolute and unlimited sovereignty, before the articles of confederation, as they were afterwards, except so far as they abridged it. Each was a party to the treaty of alliance and peace, and each was bound by the guarantee to France, after the confederation was abolished, and the constitution was established, as firmly as before: the states who delayed their ratification remained so bound, for they could by no act of their own, impair the rights of France: and they were equally entitled to the effects of the treaty of peace, whether they became constituent parts of the Union, by ratifying the constitution, or remained foreign states, by not adopting it. Their state constitutions and governments, remained unimpaired by any surrender of their rights; so that of consequence, their sovereignty was perfect, so long as they continued free from any federal shackles; so the states acted, and so the people of each declared, in all their conventions, from 1776 to 1780.
EACH STATE INSTITUTED A GOVERNMENT BY THE AUTHORITY OF
Congress has recommended to the colonies to form governments, “on the authority of the people alone:” this was done by the states who adopted constitutions before, and after the declaration of independence; by the assertion of the people in the separate conventions of each state, that they had by nature and inherent right, all the powers of government, and that none could be exercised by any body unless by their authority. They applied to themselves all the principles announced in their unanimous declaration in congress, in terms incapable of being misunderstood.
The people of Pennsylvania declared, “that all power being originally in and consequently derived from the people;" the community hath an indubitable, unalienable, and indefeasible right to reform, alter, or abolish government, in such manner, as shall be by that community judged most conducive to the public weal.”
The supreme legislative power shall be vested in a house of representatives, &c. Con. of Pennsylvania 55, 6, 7. September, 1776.
The people of North Carolina declared, that all the territory within the bounds of the state, was the right and property of the people, to be held by them in full sovereignty. Laws of N. C. 275, 6. Book Const. 234, 5. December, 1776.
Those of New York. “That no authority shall, on any pretence whatever, be exercised over the people or members of this state, but such as shall be derived from, or granted by them.” i Rev. Laws, 249. M'Cauley's Hist. N. Y. 231, 2. April, 1777.
In Massachusetts. “The people of this commonwealth, have the sole and exclusive right of governing themselves, as a free, sovereign, and independent state, and for ever hereafter shall exercise
and enjoy every power, jurisdiction and right, which is not or may not hereafter be by them expressly delegated to the United States of America in congress assembled.” Book Const. 53; Laws Mass. 6. March, 1780.
Delaware, Maryland, and Georgia, adopted constitutions in 1776, and 1777, and the people of Vermont, though not a state, made a declaration of their political rights in July, 1777, and adopted a constitution. Vermont St. Pap. 241. The governments which were instituted, were all on the same principles as those which have been specified, and the states were each in the same political situation; “sovereign, independent communities," as they were styled by congress, in their letter recommending the adoption of the confederation. 1 Laws U. S. 12.
In this, their sovereign character, the people of each state could create what corporations they pleased for their own government, either by written or tacit delegation of power, as best pleased them; their action in either mode had the same effect, whether the body politic to be created was for one, or all the states, it was the exertion of the same sovereign authority, as the people; within the limits of their own state, empire, or kingdom. Both corporations, state and federal, were formed on the same authority and in the same right; and as in England, the three states of the kingdom, comprising all the people thereof, acting, whether by organic, or administrative power, in their several and distinct estates, by their representatives respectively; had formed, "the great corporation or body politic of the kingdom.” The parliament. The legislative power. vernment established by the people. i Bl. Com. 153, 162.
So has our new constitution in writing, signed by the separate estates or states of the Union, created its great corporation; not as our old one did, a supreme consolidated government of the states, but “the federal government of these states," as the framers thereof called it in their letter to congress; and as the several states declared in the heading, by ordaining and establishing this constitution for the United States of America, as the several states, each for itself, had done before, with the two exceptions. When the people of all the states, suffering under oppression, acted by their rights of inheritance from their ancestors, followed their example by drawing their swords upon their sovereign in defending them; declared, as had been done in time immemorial: “ Nollumus leges angliæ mutare."
The people of those two states, in their own characteristic way, by deeds rather than words, content with what their representatives in congress had declared for them, and in their name, independence in fact; adhered not only to the laws, but the usages of old, and established their great corporation, by their silent consent, in submitting to the supreme legislative power of the states; as exercised by their representatives chosen in towns: a governor and the members of the upper house, by the people of the state at large. Thus, their charter and legislative usage, became their constitution, and so continued; the
EACH STATE WAS
tacit practical consent of the people, being taken as equivalent to a formal delegation of power in convention; and so considered by this Court. 3 Dall. 398, 400; 2 Pet. 656, 7.
A reference to the other eleven state governments, will show by what people, and of what state, they were constituted by organic power, original, inherent, and sovereign, whether single or connected, in one or thirteen potentates. It will also show, that if there is, or is to be, any harmony between the state and federal systems, it arises by the power which created both, being the same; and that the constitutions of government, over and within both, must be so construed, as to avoid any discrepancy between them, in their origin, organization, or action.
A SINGLE SOVEREIGN POWER,” IN ADOPTING THE
CONSTITUTION. When we thus find that each state had thus separately, either in their conventions or practically, declared, asserted, and exercised their power of instituting a government for each, before 1787; and a federal government for, and over all, for federal purposes, as then proposed and adopted, in 1788; we can look back, and in reviewing their progress from their dependent condition as colonies, to their independence as states, see and understand the power which effected the conversion by the people of each state, who transferred from their local, to their federal legislature, federal powers, by their cession, in the grant. And in its provisions we can also see, that the congress has accepted it; is organized under it; acts and must continue to act pursuant to its ordinances, through all time, as the constituent of the whole agency delegated to the government. Then, taking the relation of the states to each other, as it exists under the constitution, and as declared by this Court, in one uniform and consistent series of adjudication, from 6 Cr. 136, to 2 Pet. 590, 1; that “ The several states are still foreign to each other, for all but federal purposes;" their position, as a single unconnected sovereign power,” before and without any federation between them, is an inevitable consequence.
THE CONSTITUTION IS A CESSION OF POWER BY THE PARTICULAR
STATES; OPERATING AS A TREATY OF CESSION, BY A FOREIGN STATE TO THE UNITED STATES.
The operation of the constitution then, must, of necessity, be like that of a treaty of cession, by a foreign state to the United States. As the states are still foreign to each other for all but federal purposes, (they were entirely so before the confederation of 1781, and remained so after its dissolution, till they severally entered into the new one;) the United States could have neither a right of soil or jurisdiction, propriety or dominion, within any particular state, but by a cession from the state by its legislature, or a convention of the people. The act or deed of cession is the title to power or property, according to its terms, operating by way of grant; a treaty, compact,
or contract, transferring the subject matter thereof from one party to another; whether they are states foreign to each other, or states connected by federal relation, the effect is the same.
The constitution is a cession of jurisdiction only, made by the people of a state; the cession of territory included, in terms, soil and jurisdiction; so did the treaties of Louisiana with France, and Florida with Spain, by the grant of those provinces, in full sovereignty; each grant performed its proper office, either to transfer legislative power from the sovereign in whom it was vested, or territory from its former proprietor. When power or property thus passed to the United States, it is held subject to the terms and stipusations of the grant; an:1 federal power is exercised over all the territory within the United States, pursuant to the constitution and the conditions of the cession. Whether it was a part of the original territory of a state of the Union, or of a foreign state ceded by deed or treaty; the right of the United States in or over it, depends on the contract of cession, which operates to incorporate as well the territory as its inhabitants, into the Union; placing both under the jurisdiction of its constitution and government. So the constitution operated to incorporate such of the old states as ratified it: so it did as new states have been admitted : so it must operate in future. It was a cession, by nine states, of so much of their separate power as was necessary for federal purposes, to the body politic, called the United States, the “American Confederacy,” “Republic," or "Empire;” as a term of designation, including states and territories. The constitution was the charter of this federal corporation, as those of the different states were the charters of their state corporations of government; each with power to legislate according to the terms of their respective charters, subject only to that charter which had been made supreme for its designated purposes.
All charters and grants of power or property, are governed by the same rules of construction; all questions touching the boundaries of territory, or lines of jurisdiction, must be referred back to the original sovereign in whom both were vested; and thence deduced by a regular chain of title, to the contending parties. So this Court has done, as to controversies between the United States and foreign states; 2 Pet. 299, 314, passim; and in controversies arising from the collision of state laws with those of the Union. Adopting the principle, that all governments are corporations, they apply it to those of the territories of the United States, in such a manner as to give a key to unlock any part of the constitution, which can admit of a doubt as to the granting power; they point to and identify that sovereign power, in which was united property and dominion, within its own original territorial limits, as the supreme lord and proprietor thereof. The Court remark: “Yet all admit the constitutionality of a territorial government, which is a corporate body;" 4 Wh. 422. This short sentence, connected with that part of the constitution to which the Court refer, will tend more to solve doubts than any reasoning can do.
THE POWER OF CONGRESS OVER TERRITORIES, THE DISTRICT OF CO
LUMBIA, FORTS, ARSENALS, DOCKYARDS, &c. “ The congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this constitution shall be so construed as to prejudice any claims of the United States, or of any particular state." Art. 4, sect. 3, cl. 2.
Here the power to dispose of property, or regulate territory, by the establishment of a corporation to govern it, is identical; in what right, and by what means, either is considered as “ belonging to the United States," depends on the right by which they were made a corporation, capable of holding, disposing of, or regulating, what belonged to them as a government. This was the cession of soil, and the grant of legislative powers to a congress of the United States, who could dispose of, or regulate by law, their territory, or other property, however acquired; how then was it acquired, is the only question; as their right over it is unquestionable, when acquired. The opinions of this Court, concurring with the 16th clause of the 8th section of the 1st article of the charter, point to the grantors, who had the dominion, and the propriety, in and over whatever was granted, whether “to exercise exclusive legislation in all cases whatever, over such district, and such places, for forts, arsenals,” &c. “ as may by cession of particular states, and the acceptance of congress, become the seat of government of the United States," or "purchased by the consent of the legislature of the state in which the same may be;” or “to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States;" the right is acquired in the same manner, “cession," or grant, “by particular states," or purchase with the assent of the local legislature of one.
In relation to this district, this Court say: “On the extent of those terms, according to the common understanding of mankind, there can be no difference of opinion;" and they held, that congress had the same power of taxation in the district, as they have in the territories; by the same rules of apportionment and uniformity, as in the states. 5 Wh. 324. That the power did not depend solely on the grant of exclusive legislation, but was given in the grant of the 1st clause, 8th sect. Ist art. “ to lay and collect taxes,” &c. as a general one,“ without limitation of place,” extending “ to all places over which the government extends;" in the words of the grant,“throughout the United States." This term designates the whole “ American empire.” It is the name given to our great republic, which is composed of states and territories; all of which are alike within the United States:” and it is not less necessary, on the principle of our constitution, that uniformity in the imposition of imposts, duties, and excises, should be observed in the one than in the other. 5 Wh. 318, 19. Its language comprehends the territories, and District of Columbia, as well as the states, 523. So, under the confederation,