d to their four declarations in October, 1774, July and Decem75, and July, 1776; to the articles of confederation, and their stitutions; as so many denials in the most solemn forms, of ition submitted. It is not credible, that when the power t to legislate for colonies who avowed allegiance to the tterly denied, even under the British constitution, the of which was universally admitted; the free and indepenates, who had eleven years before renounced their allegiance Le crown, and abolished their old constitution, would have adopt. 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.

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.

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. Their 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 con'stitution 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.

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

feoffor, and his heirs, who are privy in blood, and not to any who is privy in estate, as to him in possession, remainder, reversion, &c; 8 Co. 70, b, 71, a; Shep. Touch. 77, 80; 4 D. C. D. 288, 9; Fait. E. 5, 6; 9 Joh. R. 75. An exception is of something out of that which the grantor had granted before by the deed, Shep. Touch. 77; a reservation. doth always reserve that which was not before, or abridge the tenure of that which was before, ib. 80; and sometimes it has the force of a saving, or exception, to reserve a new thing, or except part of the thing granted; Co. Litt. 143, a. It is therefore evident, that to give any effect to the reservation, it must be taken as the act and words of the grantor, 10 Co. 106, b; 4 D. C. D. 290; and that whatever meaning is given to the term in the preamble, must be carried into the exceptions and reservations; so as to make the reserved powers a part of what was in the people before the grant, or something excepted from it.

THE EFFECT OF AN EXCEPTION OR RESERVATION IN A GRANT.

No jurist has ever questioned the universal application of the maxim, "poterit enim quis rem dare et partem rei retinere, vel partem de pertinentibus; et illa pars quam retinet semper cum eo est et semper fuit." Co. Litt. 47, a. Whether the words operate as an exception or reservation, the effect is the same; the part or thing excepted or reserved, always is in the grantor, and always was; and the maxim has been adopted by this Court in its common law meaning, by the words of the grantor, denoting his intentions, and to be construed accordingly. 6 Pet. 310, 741; 4 D. C. D. 290; Fait. E. 8.

It is then a necessary consequence of these rules, that the people of the several states, have now no reserved powers, or that they are the granting power of the constitution; and as grantors, could make exceptions to the powers of congress, to their own reserved powers, and reserve what was not so granted or excepted. Another rule results from the preceding ones, which this Court lays down as one "to which all assent," that an exception to any power proves, that in the opinion of the lawgiver, the power was in existence had there been no exception. 12 Wh. 438, 9; 9 Wh. 206, 7, 16. The exception marks the extent of the power, 9 Wh. 191; the thing granted, is ascertained by what is excepted or reserved, 6 Pet. 310, 741; an exception will not be inserted by construction, 4 Pet. 462, 3; but shall be taken strictly against the grantor, 4 D. C. D. 290; and “an exception out of an exception, leaves the thing unexcepted." Ib. Fait. E. 7.

By keeping in view these unquestioned rules, it is easy to understand the constitution in all its parts as a grant; and by so considering it, we can trace the true grantor in its provisions, its history, and the political situation of the states at the time of its adoption, and back to their colonial condition. If by so doing certainty can be attained, no labour can be too great; nor can time be deemed uselessly employed, if it leads to satisfactory conclusions on a subject so important.