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eign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all;" 4 Wh. 404. In this language there is neither a mystical or an erudite meaning, in its clear and conclusive explanations of the two systems. The congress of the confederation, was a body which conducted the affairs of the league, under the authority of state legislatures only; and as the power could not rise higher than its source, congress could operate only by their secondary power; and reach the people only by requisitions on the states, to be enforced by state laws. The congress of the constitution, representing both "the states," and "the people of the several states," by a grant emanating directly from them, could operate on the people of the state; and carrying into effect their own laws, could, without the intervention of any intermediate power, execute them to the full extent of their granted powers.

Let these judicial expositions be applied to the constitution, to ascertain by its language, the meaning of the terms, people, states, representation, congress: taking them in the same order as the constitution does, in its ordaining part.

Art. 1. Sec. 1. "All legislative powers herein granted, shall be vested in a congress of the United States, which shall consist of a Senate and House of Representatives." This is a definition of the general term congress, and its constituent parts; which are composed as follows:

Sec. 2. "The House of Representatives shall be composed of members chosen every second year, by the people of the several states; and the electors in each state, shall have the qualifications requisite for the most numerous branch of the state legislature." This defines the parts of the one constituent body of the congress, and who shall elect them. The next clause prescribes the ratio of each state.

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Clause 3. "Representatives and direct taxes, shall be apportioned among the several states which may be included within this Union, according to their respective numbers; which shall be determined, by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxedthree-fifths of all other persons. This defines the basis of representation to be, the federal numbers within the several states; not the people of the states only, who elect the representatives of each; they are included as free persons, each an unit; but all other persons are also included, five of whom make three units; the aggregate determines the number of members who shall be chosen by the people of the several states, to compose the House of Representatives.

"The number of representatives shall not exceed one for every thirty thousand; but each state shall have at least one representative: and until such enumeration shall be made, the state of New Hampshire shall have three," &c.

Thus, the members of the House of Representatives, elected by the people of the several states, according to an enumeration of the re

spective federal numbers of the several states, are the representatives of the several states. Clause 4. "When vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancy."

The several representatives of the several states, thus compose the representation from the several states, in the House of Representatives, as a constituent of a Congress of the United States.

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Sec. 3. "The Senate of the United States shall be composed of two senators from each state, chosen by the legislature thereof, for six years; and each senator shall have one vote.' Such senators are therefore the representatives of each state, in the Senate, who compose the other component part of a congress of the United States.

Sec. 4, clause 2. "The congress shall assemble at least once in every year." Here, then, we have a definition of the body in whom all legislative powers granted by the constitution, are vested: after their meeting it is, "The United States in Congress assembled,” the same as all preceding congresses had been termed. The mode in which the two constituent parts act in their legislative capacity, is by majorities, or two-thirds of the members, as the case may be; by the appropriate provision, applicable to all other legislative bodies. Though they are individually the representatives of the several states, and the members from each state are its representation in congress; yet that body being invested with legislative powers, authorized to act by majorities of votes, without any reference to states, as in the old congress, it follows, that as they may thus legislate to the full extent of their constitutional powers, their laws are binding throughout the territory of the states, who are within the Union. "They serve for all.” Vide 1 Bl. Com. 159.

In creating the executive power of the government, the constitution introduces a new principle, in directing how, and by whom, the person who is to hold the office of President, shall be elected; as it is neither by the people or the states, but by a third body, he is the representative of neither; but the officer designated in the mode prescribed, to perform the duties enjoined, and execute the powers conferred on him as an officer. The separate and distinct character of the states is, however, carried into his election.

Art. 2. Sec. 1. clause 2. "Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors equal to the whole number of senators and representatives, to which the state may be entitled in the congress," &c.

Clause 3. "The electors shall meet in their respective states, and vote by ballot for a President." (Vide 12. Amendment.) "And if no person have a majority, then from the five highest on the list, the said House (of Representatives) shall in like manner choose the President; but in choosing the President, the votes shall be taken by states, the representation from each state having one vote," &c., (as in the old congress of states and colonies. 1 Journ. 11: 1 Laws 14.) These terms," representation," "representation from each state,'

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"having one vote," are peculiarly definite, and appropriate to the apportionment thereof, among the several states, who are separately represented in the House; another term, equally so to the Senate, as composed of two senators from each state, in a body in which the representation from the states, is the same in number, is used in the last clause of the fifth article of the constitution, relative to amendments: "And that no state, without its consent, shall be deprived of its equal suffrage in the Senate."

Thus far the constitution delineates the action of the people, the states, or state legislatures, and the electors, in organizing the legislative and executive departments of the government, which enables it to execute all its functions and powers: it remains only to be seen, how, and by what power, this organization of government, the distribution and administration of its powers, was authorized and directed.

Art. 7. "The ratifications of the conventions of nine states shall be sufficient for the establishment of this constitution, between the states so ratifying the same."

It is then, by the separate action of the states, in conventions of nine states, (not of a convention of nine states) that the grant was made; the act of eight produced no result; but when the ninth acted, the great work was effected as between the nine. Until the other four so acted, they were no part of the United States; nor were the people of the nonratifying states, any part of the people of the United States, who ordained and established it.

That the term, conventions of states, meant conventions of delegates, elected by the people of the several states, for the express purpose of assenting or dissenting, to their adoption of the proposed constitution, is admitted by all; as also, that no general convention of the whole people was ever convened for any purpose: and that the members of the convention which framed it, met, and acted as states, consented to, and signed it for and in behalf of the states, whom they respectively represented, appears on its face. It was proposed to the people of each state separately, and was so ratified; it existed only between those states, whose people had so accepted it. It would, therefore, most strangely contradict itself, throughout all its provisions, to so construe the preamble, as to make it a declaration, that it was ordained by any other power than that of the people of the several states, as distinct bodies politic, over whom no external power could be exerted, but by their own consent.

These are not only the necessary conclusions, which flow from the plain language and definite provisions of the constitution itself, but their settled interpretation by this Court. "From these conventions the constitution derives its whole authority. The government proceeds directly from the people, and is ordained and established in the name of the people." 4 Wh. 403.

If it is asked what people; the answer is at hand, "A convention of delegates chosen in each state, by the people thereof, assembled in their several states." Ib. sup.

It was in this mode that "the people of all the states created the government;" it is in the mode pointed out by the constitution, that the people of all the states are represented in the House of Representatives, and the states themselves are represented in the Senate; and both, by their representatives, exercise the legislative powers which are granted to, and vested in a congress of the United States. The government is thus created by the people; organized by the people and states; its laws enacted by the representatives of both; and the executive power vested in a President, elected by electors appointed by the states; each a distinct body. The same people perform both functions; the one creative, the other elective; "the people of the several states," the states, or state legislatures, each submitting the constitution to the convention of the people thereof; and when ratified, choosing the senators, and directing the appointment of electors; all done by the free action of the people and states, by their own internal power. When the creation and structure of the government are thus complete, by the separate action of people and states; its movements continue by the same action, and are renewed at the periods prescribed. The people of each state elect its representatives in the House; each state chooses two senators, and appoints its proper number of electors to elect a President. So it must act through all time as a government of states, put in motion by the power which acts, in altering old, and instituting new governments; which organizes, continues, and can amend, with such restraints, conditions, exceptions, and reservations, as were necessary to give efficiency to the latter, without "a vexatious interference with the internal concerns of the former;" 4 Wh. 628. By thus tracing both governments to the same fountain, and the power of both, emanating in separate grants, their bearing on both systems can be well understood, by referring any ambiguity in the grant, or any part thereof, to the same rules and standard of interpretation, by which we measure and expound other grants and charters, which convey property, delegate, restrain, or reserve power.

THE DIFFERENT MODES OF CONSTRUING THE CONSTITUTION.

These considerations, however, have utterly failed to settle the true meaning of the term, "We, the people of the United States," as the granting or constituent power of the federal government. So far from their being any general assent to that meaning, which, to my mind, is so apparent in the constitution, with its necessary practical results, which its framers and adopters must have known and foreseen to be inevitable; the reverse may be the common opinion.

It is but too apparent that there have been two classes of both statesmen and jurists, who, from the time of the convention of 1787 to the present time, have radically differed in their constitutional opinions. Those of one class, fearful of the recurrence of the evils of the confederation, adopt the most liberal rules of construction, in order to enlarge the granted powers of the federal government, and extend the restrictions on the states, and state laws, beyond their

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natural and obvious import. Those of the other class, more fearful of the gradual absorption of the powers of the states, by the assumption of powers tending to turn a federal government of states" into a consolidated government of the Union; adopt the most narrow construction which can be put upon words, to contract the granted powers of the one, and the restrictions on the others, by which the reserved powers will be proportionably enlarged. There was a third class, of which there is yet a small remnant, who were willing to take the constitution with its amendments, as it is, and to expound it by the accepted rules of interpretation; whatever might' be the result on the powers granted, restricted, excepted, or reserved; if it was the meaning and intention of the supreme law of the land, it was their rule of action. Each of the three classes, justly considering that political power operated like the screw in mechanism, gaining strength by every onward turn, losing the strength of its hold by a backward turn, and retaining its hold so far as it had turned. Each of the two first classes would, therefore, endeavour to find by construction, a lever by which to give it a power, stronger in one case, and weaker in the other; while the third would leave it at the precise point where the first moving power had fixed it; believing, that it ought to remain stationary, till the amending power should turn it forward or backward from its original position. Taking my position in the ranks of the third class, it has been my endeavour, in all stations, to find out the meaning of the constitution by its expressed intention, to be collected from all its parts by old settled rules; the history of the times which preceded, and the state of the times at its adoption. In so doing, I can give to the preamble, or to he declaratory part, no greater importance than to the other parts of the whole instrument; when they can all be reconciled, they must be made to do so; if they cannot be made consistent with each other, that which most clearly indicates the intention, must control; recital must yield to enactment; form to substance; the name to the thing. Those who use it as a lever, by which to press the screw more severely on the powers of the several states, must trace the power which first propelled it to some source of sovereignty, absolute and unlimited, in matters of government; else it cannot restrict the states.

If the preamble truly points to the majority of the whole people of the United States, in their aggregate collective capacity, as the original depository of this power; that power is competent for all purposes of consolidating, or distributing it, in one, or among many governments: but it necessarily excludes federation between the several states. They must come into it as equals in power, who can acknowledge no federal head, except the one created by the act of federation: no federal legislation can be exercised, but by a legislature which represents the constituent parts. If congress is the creation of the sovereign power of one state or nation, whose people have done the act in the unity of their political power, it is no federal government; there are no constituent parts by which to compose it.

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