or state. They were a mere congress of states, colonies, or provinces; the legislature of each of which was the separate constituent of its own deputies, or "ambassadors," who gave the vote of their sovereign," and not their own; and, therefore, could by no political possibility, be a legislature in any political sense, as the representatives of a people in their aggregate collective capacity.

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THE PERVERSION OF THE TERM THE PEOPLE IN THEIR AGGREGATE OR COLLECTIVE CAPACITY."

If any thing connected with the construction of the constitution can be deemed a bold and unwarranted theory, or extravagant doctrine, it is in the application of the remarks of Mr. Justice Blackstone, in 1 Bl. Com. 158, 9, before quoted, as to the people of a small state, such as "the petty republics of Greece, and the first rudiments of the Roman state." There, he says, the people legislated "in their aggregate or collective capacity;" which term he uses in contrast with legislative powers exercised by representation of the people in a large state: the power is the same in the people of a large or small state; the only difference is in the mode of its exercise: in the latter case it is in their primary assemblies, in the former by representatives, elected to act as their agents by their authority. Now, when we find a term used in reference to a petty state, whose whole territory was not as large as a county in one of the states, or its population equal to many towns or cities, applied to the establishment of a government of this Union, of an almost boundless extent; the utter fallacy of any proposition founded upon it, is self-evident. It never has been true, in fact, that the people of any of the states assembled to make laws, in any other way than by representation; the people of Athens would meet at the Areopagus, and of Rome at the Capitol, to make laws or decrees; but the people of England or the United States never so met. When their action is in their primary assemblies, as an aggregate or collective body, it is, and always has been, either to express their opinion, or exercise the elective franchise in choosing their representatives; this is done, as Blackstone says, in designated districts; for, in a large state, the people must do that by representatives, which they cannot do in person; that is, legislate by their duly selected agents, and not personally. No lawyer in Westminster Hall would venture to assert, that the ordinances of the convention of 1688, were the acts of the people of the kingdom, in their "aggregate or collective capacity;" as the people of Athens or Rome, when in an assembly, they would put down one ruler and appoint another, or change their form of government. No commentator on the constitution of England, has ever confounded the action of the people of a county or city, in the election of the members of a convention, with the action of the convention by its ordinances; and no theorist has been hardy enough to take the position, that when the people act in a convention of their representatives, they act at the same time in their individual capacity. In England, at least, there is an agreed distinction between the con

no

stituent and the agent; between a body composed wholly of constituents, and another body of mere agents; between electing the agents for ordaining a fundamental law, and its enaction by those agents under their delegated authority. There, too, the nature of a representative government appears, in the opinion of their jurists and statesmen, as it does in its practical operations; fact, principle, and theory, point to the same original source of power; and " political dreamer" thinks of compounding the people or the estates of the kingdom, into one mass, or one estate. Their unwritten constitution is clearly understood; the powers of all corporations or bodies politic are accurately defined, whether they relate to government or other matters; and voluminous as the reports of their judicial proceedings are, we seldom see one which involves a question of constitutional power, in any department or office of government.

How different the case is here needs no further explanation than what is afforded by our judicial and political history; we have not yet attained a knowledge of the power on which the federal government rests; the meaning of the preamble of the constitution is unsettled; and as we trace it to the bodies which adopted it, the difficulty thickens. A great question is at the threshold, and must be removed, before we can examine the interior of the structure. All admit, that in fact, the constitution was established by the ratification of the people of the several states, in separate conventions or representatives, whom they elected in the respective counties: yet the preponderance of political and professional authority, is in favour of the proposition, that it was the act of the people in their collective capacity. When this shall become settled doctrine, it will be seen how much better the nature and science of government is now understood, than it has been in England; and was understood by the congresses and conventions of these states, from 1774 till 1787. It will also illustrate the happy effects which flow from the great fundamental principle of the American system of government-the certainty of a written constitution.

The congress of the revolution, and the convention of 1787, were ignorant of any other legislative power than that of the separate states. It is attributing to the members of congress in 1777, the most utter and profound ignorance of the nature and powers of the government of the revolution, which they themselves administered for five years, if it was such an one as commentators now hold it to have been. In the letter recommending it to the states to adopt the articles of the confederation, they say, "Every motive calls upon us to hasten its conclusion;" "it will add weight and respect to our councils at home, and to our treaties abroad." "In short, this salutary measure can be no longer deferred. It seems essential to our very existence as a free people, and without it we may soon be constrained to bid adieu to independence, to liberty, and to safety," &c. 1 Laws U. S. 13. The remedy was far worse than the disease, according to modern theory; but the practical statesmen and jurists of the day, deemed it of vital importance to have a government in form,

though utterly defective in substance and execution. Bad as it was, it was better than none; a line of duty was prescribed to the states; if they did not follow it, it was not because it was not plain; whereas, before, the only line was drawn by the states themselves, in their separate instructions to their delegates, or in acting on their recommendation. When too it is recollected, that congress asked for the delegation of the shadow of power by states, when, according to the commentary, they had the substance already, by delegation from the people; the men of the revolution were either ignorant in what a government consisted, or the expositors of their acts have made one which never existed but in their own fancy.

Their

The same remarks will apply to the members of the convention of 1787, if we so take the words of the preamble of the proposed constitution, as to be a declaration that the political existence, and organic power of the several states and people, had become so amalgamated into one body of supreme power, as to make it the sole grantor of the powers of the federal government, and competent to restrict the states, and control existing state constitutions. letter to congress, and of the latter to the several state legislatures, asking separate conventions of the people in each to ratify it; was an act indicating political fatuity, if the instrument contained, and was intended to be a declaration, that when ratified by such conventions of nine states, and thus established, it was not " by the people of the several states," but of all collectively.

THE VIEWS OF THE GENERAL CONVENTION OF 1787, AND THE

STATES.

It would also be an imputation of political treachery to the states, who were the constituents of that convention, to draw up a frame of government, which in all its provisions explicitly declared the separate existence and action of "the people of the several states, and of each state," in all the movements of the government, in all time, in language admitting of no twofold interpretation; And then prefixing to it a declaration, by which the states, in their most sovereign capacity, in separate conventions of the people, are made to admit and acknowledge, that "the absolute sovereignty" in matters of government, was not, and from July, 1776, had not been invested in the people of the separate states; and that they had, at the adoption of the constitution, only such "residuary sovereignty," as remained after a paramount power had made a supreme law over them. Had the convention so announced it to the congress, the legislatures, or the people of the states, in proposing its ratification; there would have been a fifth unanimous declaration of the rights of the states and people; not only of rights, but of wrongs and grievances, more aggravated than those which led to the revolution, because they were attempted by their own representatives, in violation of their instructions. No state convention would have convened; congress would have at once rejected the proposition, and in the name of each state declared, non in hæc federar venemur; they would have

pointed to their four declarations in October, 1774, July and December, 1775, and July, 1776; to the articles of confederation, and their state constitutions; as so many denials in the most solemn forms, of the proposition submitted. It is not credible, that when the power of parliament to legislate for colonies who avowed allegiance to the king, was utterly denied, even under the British constitution, the authority of which was universally admitted; the free and independent states, who had eleven years before renounced their allegiance to the crown, and abolished their old constitution, would have adopted a new one which left them less free in legislation, than they were in their colonial condition. After throwing off the pack put on their backs, while boys and children, as parts of the family of one common father, by an usurped power of legislation; they would not, as men, and as freemen, emancipated by their own acts, take up another pack, still heavier and more grievous.

THE SUPREMACY OF THE CONSTITUTION OVER STATES, GREATER THAN PARLIAMENT OVER THE COLONIES.

Parliament never asserted by the plenitude of its omnipotence, such powers of legislation over the colonies, or attempted to impose such restrictions on colonial or provincial legislatures, as are exerted by the constitution; and if it is a supreme law, overriding state constitutions, by any other authority than that of the people of each, without and against their consent, it is one more sovereign over them than that which they threw off by the revolution. Every principle by which it was conducted, every object sought to be attained, was reversed and frustrated; if, in 1787, the states were not in that "separate and equal station among the powers of the earth," which they assumed in 1776, and did not then each retain all powers which they had not expressly delegated to the congress in 1781. Every state constitution asserted palpable falsehoods; and the people thereof exercised usurped powers, if the sole right of instituting any government over them was not in themselves alone. And thus, every solemn act, and written document of the congress, and the states, for thirteen years, will become utterly falsified; if the "power, right, and jurisdiction" of the federal government, and the authority of the constitution is not by grant from each state, of what all had so often declared to be inherent in the people thereof, by original right, and which it had hitherto retained. If these powers were in the whole people of the United States, as one " single sovereign power," from 1774, till 1787, that power still exists in its original plenitude; and the judges of this, and all state courts, are bound to obey and expound it as the grant of that power, speaking in its words, and expressing thereby its intention, as the grantor in whom there was full and absolute right to do whatever it has ordained.

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THE EFFECT OF TAKING THE CONSTITUTION AS A GRANT BY ONE

PEOPLE.

If the constitution was only a grant of power, it would be of little importance to inquire whether it was to be considered as made by the one, or the separate people of the states who adopted it; for its obligation on those states would be unquestioned. But the importance of the vestion arises on the restrictions and amendments; whether a state restricts itself, or is restricted by an external power; whether the reservations are to the people collectively, or the people of each state. And it must be remembered, that the terms of reservation in the 10th amendment, make no change in the constitution, in virtue of the amending power in the 5th article; it is a declaration by the grantor, of the meaning and effect of the grant and prohibibition, which none but the granting power was competent to make. Hence, it is necessary that there should be: first, a competent power to grant the thing granted; and next, the grantor must have competent power to prohibit and restrain states and state laws; to make exceptions to the grants and restrictions, and to reserve to itself all other powers not exercised by the grant: and as B can make no exception or reservation out of a grant made by A, all these powers must be original in the one who was competent to make the grant. If it is in A, the grant throughout being his act, is easily construed as one deed, with its various clauses; which, when referred to one person, whose intention it expresses, is taken as a simple, plain writing, the one part whereof explains the other, by reference and established rules. But if the grant is taken to be the act of A, in granting certain things to C, restraining a previous or subsequent grant by B to D; declaring what B or D may or may not do; and there is attached to the grant a proviso or defeasance by B, that what is not granted to C, or prohibited to B and D, shall be reserved to B or D, the whole is unintelligible. The exceptions and reservations being of original right and title, which is vested in A, are void and inoperative, if not made by A himself; they remain in him, and cannot pass to B or D without direct grant: of consequence, the grant becomes disencumbered of any exception or reservation; and must be taken, by all the rules of law, as if it contained none in terms. Taking, then, the constitution as the grant of the one people to congress, imposing restrictions on the states acting in the legislatures thereof, and the people acting in convention; and the tenth amendment operating as a proviso or defeasance on every part thereof, not as an actual or intended alteration of any of its provisions; it must follow: That as it was made by a power subordinate to that which ordained the constitution, it was incompetent to except or reserve any thing out of, or from it, to the people of the several states, if they are not the grantor; or to the states respectively, if each was not a grantor. Not being parties to the grant, they are strangers to it; and no principle of law is better settled, than that an exception or reservation to a stranger, is void: it must be to the lessor, donor, or