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several powers, as will prevent the objects of the federation from being defeated.


The statesmen of the colonies could not mistake the government under which they lived; the absolute sovereignty of the country was in the king and parliament; colonial and provincial governments were created by charters granted in virtue of royal prerogative, not by acts of parliament. “The British government, which was then our government,” claimed the whole territory by right of discovery and conquest; 8 Wh. 588, (ante et post.); the right of the king to legislate over a conquered country, was never denied in Westminster hall, or questioned in parliament. Cowp. 204, 13; 9 Pet. 748. Hence, he may, by his grant by letters patent or charter, authorize the exercise of legislative power, by a government created in a colony, or the proprietary of a province; and letters patent will be presumed from prescription, when a territory has been long possessed, and the powers of government exercised with the assent and approbation of the crown, though none were in fact ever granted: as was the case of the three counties, now composing the state of Delaware. 1 Vez, Sr. 446. Penn v. Baltimore, Chalmers, 60, 40, 1. No federal connection did or could exist between the mother country and the colonies, or between them, consistently with the constitution of England, whereby parliament was the controlling government over them by their own consent. The colonies could establish a federal government over themselves, when the power of Great Britain over them became extinct by the revolution; but neither they or the states entered into any act of federation, till 1781; neither their separate or unanimous declaration of independence, created or announced the existence of such political relation between them. They declared what was their then political situation, consequent upon the cessation of their allegiance to the king, and the dissolution of all connection between them and “the state of Great Britain,” by the acts set forth, one of which was, “He has abdicated government here, by declaring us out of his protection, and waging war upon us. We must therefore acquiesce in the necessity which denounces our separation, and hold them as we do the rest of mankind, enemies in war, in peace friends.” A reference to the prior declarations of the congress, will elucidate this. In October, 1774, they declared among other rights, that they “were entitled to all privileges and immunities, granted by charter, or secured by their several codes of provincial laws;” “which cannot be taken from them, altered or abridged, without their own consent, by their representatives in their several provincial legislatures.” 1 Journ. 28, 9. In their petitions to the king, at the same time, they state their objects: “We ask but for peace, liberty and safety; we wish not a diminution of the prerogative, nor do we solicit the grant of any new right in our favour. Your royal authority over us, and our connection with Great Britain, we shall always carefully and zealously endeavour to support and maintain.” 66. In July, 1775, they declared, that “societies or governments, vested with perfect legislatures, were formed under charter from the crown,” 134. After stating the causes which induced them to take up arms against the king, they proceed, “We mean not to dissolve that Union subsisting between us and our fellow subjects in the empire. Necessity has not driven us into that desperate measure, or induced us to excite any other nation to war against them. We have not raised armies with ambitious designs of separating from Great Britain, and establishing independent states,” 138. In their letter to the Six nations of Indians, they use a term peculiarly appropriate to a declaration of independence: “You, Indians, know how things are proportioned in a family—between the father and the son—the child carries a little pack. England, we regard as the father—this island may be compared to the son. The pack is increased; the boy sweats and staggers under the increased load, and asks that it may be lightened; asks if any of the fathers in any of their records, had described such a pack for a child; he is ready to fall every moment; but after all his cries and entreaties, the pack is redoubled; yet no voice from his father is heard. “He therefore gives one struggle and throws off the pack; and says he cannot take it up again.” “This may serve to illustrate the present condition of the king’s American subjects or children,” 135. The language is plain, but very easily understood. In December, 1775, they disavow any allegiance to parliament, but avow it to be due to the king; and deny that they have opposed any of the just prerogatives of the crown, or any legal exertion of those prerogatives, 263. Their petition to the king in 1774, taken in connection with this declaration, shows the precise ground assumed in 1774, and retained, till in the final struggle, this pack was thrown off by the boy. “We know of no laws binding on us, but such as have been transmitted to us by our ancestors; and such as have been consented to by ourselves, or our representatives, elected for that purpose. We, therefore, in the name of the people of these United Colonies, and by authority, according to the purest maxims of representation derived from them, declare, that whatever punishment,” &c. 264, 265. Had the congress then declared, what they did afterwards, the only pack they ever acknowledged to have been constitutionally imposed on them, (the prerogative of the crown and consequent alleiance to the king,) would have been thrown off, and the boy becomeg a freeman. This was done in effect, on the 15th of May, 1776, when congress resolved, that “it is necessary that the exercise of every kind of authority under the said crown, should be totally suppresed; and all the powers of government exerted under the authority of the people of the colonies;” 2 Journ. 166. This resolution was a preamble to the resolution of the 10th, recommending to the respective assemblies and conventions of the United Colonies, to adopt governments for themselves, 158; taken with the original resolution, as agreed to on the 2d of July, as follows: Resolved, “That these United Colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British crown; and that all political connection between them and the state of Great Britain, is, and ought to be, totally dissolved.” 2 Journ. 227. It may well be asked, in the words of congress, in December preceding, “Why all this ambiguity and obscurity, in what ought to be so plain and obvious, as that he who runs may read.” “What allegiance is it that we forget? Allegiance to parliament? We never owed, we never owned it. Allegiance to our king? Our words have ever avowed it; our conduct has ever been consistent with it.” 1 Journ. 263. Now it is very immaterial what form of a declaration was adopted two days afterwards; when congress, for a fourth time, declared the rights and wrongs of the colonies, and their actual condition after an open annunciation of an existing war between the king and state of Great Britain and these United Colonies, then independent states.


It was announcing what had been done, and the causes for doing it; and must be taken to have been done, on the principles declared from the beginning of the complaints and struggles of the colonists, to throw off the pack; it declared the pack removed, and the boys Jreemen.

The result was obvious, and was so declared, “the thirteen colonies of Great Britain,” thereby became “the thirteen United States of America;” connected in a war for their defence, but not confederated by a government, to make laws for, or to put a pack on them.

A comparison of this declaration, with the counter-declaration of parliament, as contained in 1 Bl. Com. 109, (a book then in quite as familiar use as now, and that was evidently under the eyes of congress at the time,) will show their meaning: “that all his majesty’s colonies and plantations in America, have been, are, and of right ought to be, subordinate to, and dependent upon, the imperial crown and parliament of Great Britain.” Congress declared that, “ these colonies are, and of right ought to be, free and independent states.” Not all his majesty’s colonies in America, for Canada and Nova Scotia were no parties to the declaration; not that these colonies had been free, for they admitted they had been dependent, and the people had been the loyal and faithful subjects of the king; hence the words were appropriate. “ These colonies, (now) are, and of right ought to be, not subordinate and dependent, but free and independent states.” The same author defined what “the state of Great Britain” was. “A state, a realm, a nation, an empire; the supreme head whereof, is “the king; inferior to, accountable to, and dependent on no man upon earth;” “as sovereign and independent within these his dominions, as any emperor is in his empire,” (the imperial dignity, 1 Journ. 65.) “and owes no subjection to any potentate upon earth,” 1 Bl. Com. 242; or, in the language of this Court, “a single sovereign power,” 6 Cr. 136. The transition was from this condition of a colony, to that of a state; from subordination to freedom; from dependence to independence. The declaration in its front was, by the thirteen states who had been colonies, were then what they were declared to be; and the name and style of each was separately affixed at the foot, as united by the style of the United States of America, as they had been since 1774, by that of the United Colonies, &c.

Their separate independence was proclaimed, and they remained towards each other as they were before, as colonies, and then as states; they did not alter their relations: the same delegates from the colonies acted as the representatives of the states; so declared themselves, and continued their session without new credentials. The appointing power being the same, the separate legislature of each state, as a state, nation, or empire; the people, the supreme head, as the king, the emperor, the sovereign.

These colonies were not declared to be free and independent states, by substituting congress in the place of king and parliament; nor by the people of the states, transferring to the United States, that allegiance they had owed to the crown; or making with the state, or nation, of the United States, a political connection, similar to that which had existed with the state of Great Britain.

A state, to be free, must be exempt from all external control; on a “separate and equal station with the other powers of the earth;” within whose territorial limits, no state or nation can have any jurisdiction: this is of the essence of freedom, and being free, in the grant and exercise of legislative power at their pleasure, a state, and the people thereof, must have the absolute sovereignty, illimitable, save by the people themselves. Such was the situation of the states and people, from 1776 till 1781, when the several state legislatures made an act of federation, as allied sovereigns, which was only a league or alliance; and being utterly defective, was substituted by a new act of federation; a constitution, ordained by the people of the several states, in their primary inherent right and power, existing in themselves; before any portion of its sovereignty had been impaired by any act of federation, or any severance from its territorial boundary.


So taking the power which ordained the constitution, it can be traced in all its provisions and amendments, in perfect consistency with its preamble and mode of adoption; it is the same power which was exercised by the people of the colonies, when they abolished the royal governments, and established new ones by their own authority as states; and by which they abolished the confederation, and ordained the constitution. Viewed in all its bearings, as a grant, a charter, conveying and restricting the exercise of power, providing for its own amendments, and the amendments made pursuant thereto; the people of the several states are seen in all its movements; their acts are referrible to no other power; and the existence of any authority, not subordinate to theirs, deranges the whole system. When it is so considered, without any theory but that which is developed in the English system of jurisprudence; which, in all its parts, is infused into all our institutions of government; there is no difficulty in finding out its intention by the settled rules of interpretation. We can understand the federal and state system in their origin, organization, and operation, as the work of the same hand; which, in the institution of one government for state purposes separately, and another for the federal purposes of thirteen united or confederated states, has acted in separate bodies; and can ascertain what it has granted, how far it has restrained itself, and measure the grant by its exceptions and reservations. There never has been, or can be any difference of opinion as to the meaning of the ordaining parts of the constitution in the terms, “the people of the several states;” “the several states which may be included in this union;” “each state;” for they do not admit of two meanings. They refer to those states which, having ratified the constitution, are each a constituent part of the United States, composing, by their union, the United States of America; and to the people of each state, as the people of these United States. When terms are so definite in the body of an instrument, and one less definite is used in the preamble, which can be made equally definite by reference, the established maxim applies—“id certum est quod certum reddi potest.” Let then the term, We, the people of the United States, be referred to the second section of the first article, and compared with the terms, “the people of the several

states;” “the several states which may be included within this'

union;” the sense of both is identical. So, when we refer the terms to the seventh article, prescribing the manner of ordaining and establishing the constitution, there is the same identity of meaning. No other variance exists between the terms in the preamble and body, than exists in other terms which are varied in form, but are the same in substance, and used in the same intention; as, “each state;” “the several states;” the several states “which may be included within this union; the United States ; the United States of America; a congress of the United States; the congress; congress,” &c. When the various parts of an instrument can be made to harmonize, by referring the supposed doubtful words of one part to the certain words of another, without doing violence to their appropriate sense; every just rule of construction calls for such reference as will remove ambiguity: if the two terms cannot be reconciled, it is a settled rule, that the preamble is controlled by the enacting part. No case can arise to which these rules can be more applicable, and there is no discrepancy between the different terms; one is less full and explicit than the others, the name given to the granting power is not its substance; the thing is the power; when

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