Page images
[blocks in formation]

Corporations of government, 51, 82, 84, 138.

private, rights of, 42, 136, 139, 140.
Conventions, of the states of England, 56.

of the states of this Union, 12, 35, 59, 66.
Crown lands, to whom they belonged after the revolution, 49, 66, 75, 86.
Declaration of rights at the revolution in England, 43.

of rights by the colonies and congress, 14, 26, 68.
of independence, its effects on the political condition of the several states,

28, 72, 75, 78.
Exceptions, in deeds and grants, how construed, 64, 171.
Ferries, right of, defined, and grants thereof, 150, 151, 153.

nature, extent, and construction of, 156, 163, 168.
Franchise, corporate, what are, 136.

of port markets, fairs, ferries, their extent, &c. 154, 157.
Government, federal law organized and administered, 20, 25, 33.

its powers, nature and extent thereof, 22, 24, 66, 81, 183, 192.
of states, their powers and restraints thereon, 14, 43, 88, 89, 186.

of territories, how organized, and powers, 85, 88, 91.
Grants, by prerogative or by government, how construed, 142, 143, 148, 164.

to charitable or public use, 142, 143.
for private benefit, 143, 144.
of franchises on public highways and rivers, 142, 144, 146, 152.
of franchises on private property, 146, 151.
ancient, or charters, how construed, 43, 44.
of franchises by prescription, on what founded, 164, 165.
consideration of, and when void, 152, 155, 157, 161, 166.
how proved, and their extent, 146, 149, 153, 154, 165.

when exclusive, or may be concurrent, 157, 163, 165, 167.
Health laws, power of states to pass, 184.
Inspection laws, extent of the power of states to pass, 170, 184, 187.

control of congress over, 189, 194.
Internal police of states, by whom to be regulated, 69, 182.

what is, 187, 194, 196.
Jurisdiction of states defined, and its extent, 88, 186. '

cession of, 66, 83, 87, 88, 93, 97.

of federal and state governments, 183 to 196.
King, nature and extent of prerogative, 52, 53, 142, 165.
Land in colonies, the absolute propriety thereof, 49.
Laws of states, when subject to revision and control by congress, 170, 189, 191.

when void and when valid, 185, 188.
Magna charta, the law of the colonies, 4, 6.

its provisions, 77, 137, 139.
New states, how admitted into the Union, 22, 90, 92.
Ordinance of 1787, its provisions and effect, 5, 88, 90.
Paupers, power of a state to prevent their introduction, 185, 194.
People of the United States, the term defined, 31, 44.

how they acted in adopting the constitution, 18, 31, 36.
by what people it was adopted, 30, 32, 82, 97.
how a people act in their “ aggregate collective capacity,'' 32, 52, 60, 67,
how they acted before 1787, 81.

how represented under the constitution, 33, 55.
Powers, prerogative of the states, 75, 143.

reserved to the states by the constitution, 45, 171, 183.

Powers, implied or constructive, their nature and effect, 38, 41, 102, 1706, 193.





carry into effect granted powers, 105, 182, 189.

extent of enumerated powers of, granted to congress, 170b.
Population of the United States, how represented, 20, &c.
Preamble to the constitution, meaning and construction thereof, 30, 37, 61, 97.
Prerogative powers in the United States, how considered, 53, 55.
Prescription, grants by, defined, 165.

to what estate they attach, 165.
Presumption in favour of the validity of state laws, 147, 162.
Prohibitions on states by the constitution, nature and effect thereof, 116, 170, 172, 187.
Reservation in a grant, nature and effect thereof, 45, 65.

of powers in tenth amendment, to whom made, 64.

its effect in the construction of the constitution, 19, 45, 64, 98, 103, 161, 192.

States, defined, 13, 16.

confederation between, 16, 24.

political situation of, during the revolution, the confederation, and under

the constitution, 13, 14, 71, 83.

boundaries and territory thereof, 87.

how represented in congress, 33.

Territory, original right of, in whom vested, 66, 75, 86, 88, 93, 95.

how it became vested in the United States, 87, 88, 91, 94, 97.

Treaty of peace with England, its operation and effect, 72, 86, 87.

construction of treaties, 83, 172.

United States, the term defined, 13, 85.

boundaries thereof, 86, 170c.


[ocr errors]
[ocr errors]

p. 8,

[ocr errors]

p. 31,

p. 7, line 7 from top, for via tuta read via trita. p. 7,

20 from bottom, for ex humo read ex fumo. p. 8, 5

for 1 Ser. read 1 Lev. 4

for 10 Ch 340, read 10 Co. 34. b. p. 16, 2

for or to make, read as to make. p. 24, last line, for rates, read ra'io. p. 30, line 22 from top, for these United, read the United.

7 from bottom, for ex risuribus, read ex visceribus. p. 62, last line, for federar, read fadera. p. 64, line 5 from top, for vestion, read question.

11 from bottom, add, after devolution, the rights of. p. 125, 3 from top, for 1770, read 1777. p. 129, , 3 from bottom, for exclusive, read excessive.

22 from top, for inefficient, read cfficient. p. 152, ,, 17 from bottom, for toll throrough, read toll thorough. 3

for 3 Ser. read 3 Lev.
15 from top, for such cause, read just cause.

p. 93,

p. 130.

p. 157 p. 194,


If there are any cases, in which the judges of a Court of the last resort may, without apology, present the grounds of their judgment in detail, they are those which arise on an alleged repugnance between a law or act of a state, and the constitution of the United States. There are none which deserve such minute examination of fundamental principles, which bear on the grants and restrictions of powers, and when developed, impose their uniform applications under higher obligations, than those which rest upon this Court, and all its members. In such cases, it is peculiarly necessary to recur to safe principles, to sustain them, and when sustained, to make them the tests of the arguments to be examined; these principles are few and simple, and though somewhat obscured by too much refinement upon them, can be easily ascertained by the same mode in which we find the principles of other machines, a reference to the first moving power which gives the impulse to government.

As my opinions, on constitutional questions, are founded on a course of investigation different from that which is usually taken, I cannot in justice to myself, submit them to the profession without a full explanation of what may be deemed my peculiar views of the constitution. By taking it as the grant of the people of the several states, I find an easy solution of all questions arising under it; whereas, in taking it as the grant of the people of the United States in the aggregate, I am wholly unable to make its various provisions consistent with each other, or to find any safe rule of interpreting them separately. In a matter of such importance as this, I cannot assume a proposition on which all my opinions depend, but must establish it by all the authority that can be brought to support it, against opposing opinions of great weight, and which are those most commonly received. Without doing this, my premises would be at once declared unfounded, and my conclusions of course erroneous; it is therefore necessary for me to take this course, or withhold any publication of my opinions.




POOLE AND OTHERS V. LESSEE OF FLEEGER AND OTHERS. THE MAYOR, &c. OF NEW YORK V. MILN. Though none of the judges who have concurred with the majority of the Court in their judgment in these cases, have delivered any separate opinion; and though, having been more anxious as to the result, than the course of reasoning, the illustrations or authority which led to it, it was my intention to have been content with a

silent concurrence; yet reasons which have since occurred, have determined me to present my views in each case to the profession. In all of them the result has accorded with my opinions, formed when the cases were first presented for our decision at former terms, and my most deliberate judgment at the present; but in this respect my situation is peculiar, as none of the judges who sat during the former arguments, concur in all the present opinions of the majority. In the case of the Commonwealth Bank of Kentucky, I was in the minority; in the Charles River Bridge case, it now appears that I stood alone after the argument in 1831; the Tennessee Boundary Case hung in doubtful scales; and in the New York Case, I was one of a bare majority. By changes of judges and of opinions, there is now but one dissentient in three of the cases; and though my opinion still differs from that of three of my brethren, who sat in the fourth, six years ago, it is supported by the three who have since been appointed. Placed in a position as peculiar now as it was then and since, I feel called upon to defend it, and to explain the reasons why it was then assumed and is now retained.

In the fiftieth year after the frame of the constitution had been agreed on in convention, and submitted to the people for their ratification, this Court was called upon to decide four constitutional questions of deep interest; which had been long depending, and which neither counsel or judges deemed to have been settled by any authoritative exposition of those parts of the constitution that bore directly upon them, or came within any established principles and rules of construction of this Court which would govern them.

These questions were, 1st, What is a contract—its obligations, and what impairs it? 2d, What are bills of credit? 3d, What is commerce with foreign nations-what is not; and what is the internal police of a state? 4th, What is the effect of a compact of boundary, made between two states, with the consent of congress? On all of which there had long been, and continued to be, great diversity of opinion among the judges; which did not cease to exist after they were decided, and may exist in future, when the same or similar questions shall occur.

It had long been to me a subject of deep regret, that notwithstanding the numerous, consistent, most solemn, and, (with some few, and mostly late exceptions,) to my mind most satisfactory adjudications of this Court, in expounding the constitution, its meaning yet remains as unsettled, in political, professional, and judicial opinion, as it was immediately after its adoption. If one is to judge of the next, by the results of the past half century, there is but a slight assurance that that instrument will be better understood at the expiration, than it is at the beginning of the period. It is indeed to be feared, that unless some mode of interpretation, different from what has been usually pursued in argument, is adopted; the present uncertainty must become utter confusion. In reviewing the course of argument on both sides in these cases, the remark is fully justified, that we have been referred for the true interpretation of the constitution to

[ocr errors]
« PreviousContinue »