§ 62. The doctrine of State rights was further recognized in the provision that the members of Congress should be paid by the respective States.1 The same form of Preamble was reported by Mr. Rutledge, from the Committee of detail, as late as August 6, 1787.2 § 63. On the 12th of September Dr. Johnson from the Committee on Style reported a draft of the Constitution in which the Preamble appears in the form which was adopted finally by the Convention.3 Between the 6th of August and the 12th of September the enumerated States disappeared and "the people of the United States ” were introduced as the basis of the new gov ernment. § 64. The Confederacy derived its authority from the States and it could act only through the States, and only as the expressed wishes of the Congress should be accepted and enforced by the respective States. The Constitution was declared to be the work of "the people of the United States," and by them the new government was clothed with power to act directly upon the people and that without regard to State lines and without regard to the will of the inhabitants of particular States. § 65. The change of opinion in the Convention appears to have been a growth, due, probably, to the difficulty of creating a government with adequate powers and at the same time retaining in the States as States, a constitutional right to sit in judgment upon the acts of the national government. These theories of public policy in government were inconsistant, utterly; and for the moment and with the framers of the Constitution the doctrine of State Rights was subordinated to the circumstances which required a government capable of self-action in all the exigencies of national life. § 66. The nature and scope of the changes effected by the Constitution are set forth in the opinion given by Chief Justice Marshall in the case of Gibbons v. Ogden (9 Whea. 1). 1 Madison Papers, p. 739. 2 Same, p. 1226. 3 Same, p. 1543, Speaking of the arguments at the bar as to the interpretation of the Constitution he said, "reference has been made to the political situation of these States, exterior to its formation. It has been said that they were sovereign, were completely independent, and were connected with each other only by a league. This is true. But when these allied sovereigns converted their league into a government, when they converted their Congress of ambassadors, deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature, empowered to enact laws on the most interesting subjects, the whole character in which the States appear underwent a change." (p. 187.) § 67. The first announcement of the theory of government which is embodied in our Constitution appears to have been made by Dr. Noah Webster in a pamphlet published in the winter of 1784-5, entitled "Sketches of American Policy." He proposed "a new system of government which should act, not on the States, but directly on individuals, and vest in Congress full power to carry its laws into effect.1" This sentence indicates distinctly the defect in the Articles of Confederation, and it sets forth the theory on which the Constitution of 1787 was framed. § 68. In the case of Chisholm against the State of Georgia (2 Dall. 419), the Supreme Court held that under the original Constitution a State was subject to the jurisdiction of the United States in the matter of a claim by a citizen of another State. Although by the eleventh article of the amendments to the Constitution it is declared that the "judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State," yet the reasoning of the opinion in Chisholm against Georgia that the sovereignty of the United States is not derived from the States nor in any manner connected with 1 Madison Papers, p. 708. the sovereignty which the individual State may exercise, remains undisturbed. § 69. That doctrine was recognized and enforced by Chief Justice Marshall in the case of McCulloch v. Maryland (4th Wh. 316). "At the end it is to be said that there is a sovereignty of the States created by the people of the several States, and a sovereignty of the United States derived from the people of the United States and to be exercised and enjoyed freely, within the limits prescribed by the Constitution." § 70. The theory of government embodied in the Preamble to the Constitution was far in advance of the public opinion at the time, and the extent of the surrender of the doctrine of State Rights may not have been comprehended fully by the members of the Convention. The doctrine of State Rights, as that doctrine was expressed in the Articles of Confederation, had many and earnest supporters in the country. Indeed, it was visible in most of the objections that were made to the new Constitution. It caused a division in the cabinet of General Washington, it led to the organization of political parties, and although the destruction of the institution of slavery has extinguished the chief pretext for the support of the doctrine, it still has influence with those who contend for what is called "a strict construction of the Constitution." § 71. In the light of the two cases cited and in obedience to the teachings of the decisions of the Supreme Court it is to be said that the United States, as a government, does not derive its existence from the States in their political corporate capacity, but from the whole people, and independent of the fact that for certain purposes, not inconsistent with the purposes for which the national government was created, the same people owe allegiance to the several States; that the nation might exist even if the States, as political organizations, should disappear; and, finally, that the States as political organizations have no constitutional power to interfere with the action of the general government. CHAPTER V. THE CONSTITUTION. ARTICLE 1. DISTRIBUTION OF POWERS. § 72. By section one of the first article of the Constitution, all legislative powers were vested in Congress; by section one of article two the executive power was vested in the President; and by section one of article three the judicial power was vested in one Supreme Court and in such inferior courts as Congress, from time to time, might ordain and establish. § 73. In 1793 Congress passed a law requiring the several Circuit Courts to examine wounded and disabled soldiers and seamen and report to the Secretary of War the nature and extent of disability in each case, together with an opinion as to the proportion of monthly pension that should be allowed to each. In certain cases a power of revision was reserved to the Secretary of War. (Stat. at Large, v. 1, p. 243.) The Circuit Courts of Pennsylvania and North Carolina declined to comply with the statute and upon the ground that the duty was not judicial (Hayburn's Case, 2 Dall. 409, notes), and that the act was a violation of the several provisions of the Constitution in regard to the distribution of powers. Attorney-General Randolph applied to the Supreme Court for mandamus to the Circuit Court of Pennsylvania to compel that Court to proceed under the statute, but the statute was repealed before final action was had. The view entertained by the Circuit Courts of Pennsylvania and North Carolina was affirmed by the Supreme |