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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 anything 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, by 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. o *
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. S. 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,
THE NATURE AND ORIGIN OF THE FEDERAL GOVERNMENT, AS DEcLARED BY THE convenTION of 1787, AND BY THIS courT.
The political history of our country presents a narrative of one continued struggle between the states and the confederacy, either for territory or political power. At an early period of the war of the revolution, the question whether the vacant lands which lay within the boundaries of particular states, belonged to them exclusively, or become the joint property of all the states; was a momentous one which convulsed our confederacy, and threatened its existence; but it has been compromised, and is not now to be disturbed. 6 Cr. 142; 5 Wh. 376. It was settled by cessions by particular states, and the adoption of the articles of confederation. Wide post. When that was done, the question of power arose out of the incompetency of congress to effectuate the objects of its adoption; the collision of opinion was not what were the relative powers of the several states and of congress; for it was then admitted that what was not expressly delegated, was retained by and remained in each state. That a new government was necessary was the universal opinion; but the difficulty was, in agreeing what additional powers should be given to congress by the surrender of the states; no statesman or jurist pretended that this could be done in any other way than by the voluntary act of the separate states; in their sovereign capacity, by the people in conventions. This difficulty did not cease by the unanimous act proposed by the general convention. In their letter submitting it to congress, we find them stating the same reasons which embarrassed their action, and long delayed its ratification by the states. “It is obviously impracticable in the federal government of these states, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all.” “It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved; and on the present occasion, this difficulty was increased by a difference of opinion among the several states, as to their situation, extent, habits, and particular interests:” “and thus the constitution which we present, is the result of a spirit of amity, and of that mutual deference and concession, which the peculiarity of our political situation rendered indispensable.” 1 Laws U. S. 71. There can be no misunderstanding of the meaning of this letter, that the convention had proposed the frame of a “federal government of these states,” to be created by a surrender of the necessary powers by the several states, to be made by the people in separate conventions; so as to make the constitution paramount to those of the states, and not leave the powers of congress dependent on a grant by the legislature, which the people could revoke or change. So it has been considered by this Court, in a most elaborate opinion. “This mode of proceeding was adopted; and by the convention, by congress, and by the state legislatures, the instrument was submitted to the people.” “They acted upon it in the only manner in which they can act, safely, effectively, and wisely, on such a subject, by assembling in convention; it is true they assembled in their several states, and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt, do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments. From these conventions the constitution derives its whole authority. The assent of the states, in their sovereign capacity, is implied in calling a convention; and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it, and their act was final. It required not the affirmance, and could not be negatived by the state governments. The constitution, when thus adopted, was of complete obligation; bound the state sovereignties; and the government proceeded directly from the people.” 4 Wh. 403, 4. Neither in this, or any other opinion of the late Chief Justice, will there be found an expression like that of “the people in their aggregate or collective capacity,” being the constituent power of the government; it will not be found in any act of any state legislature, convention, or congress; while every declaration by either asserts all power to be, and to have been, in the people of the several colonies or states. Every fundamental principle of that government, from which all ours have been mainly patterned; every movement of the people of both countries, in convention of their representatives; explodes the doctrine. So, too, the concurring declarations of this Court, sufficiently numerous to establish a code on any other subject, have indicated and made visible to the most ordinary capacity, the organic power which created, and was alone competent to create government. In one of their opinions, delivered twenty-five years since, they little imagined the present clouds which hang over the knowledge of those bodies, in which that power was vested. “The course of reasoning which leads to this conclusion, is simple, obvious, and admits of but little illustration. The powers of the general government are made up of concessions from the several states; whatever is not expressly given to the former, the latter expressly reserves;” 7 Cr. 33; United States v. Hudson and Goodwin. It is but reasonable, that this coincidence between the terms of the instrument, the cotemporaneous declaration of those who framed it, the action upon it by congress, state legislatures and conventions, and the exposition of all that was done, as given by this Court; would have led to the universal conviction, that the words and terms used were intended and must be taken in their declared sense. But as it has not sufficed to produce this effect, it becomes indispensable to recur to those acts of the colonies, the states, and congress; from which the conclusion has been drawn, that the grantor of the constitution, was not the people of the several states.
THE PRocF EDINGS of THE CONGRESS of 1774. THE DECLARATION of THE RIGHTS OF THE colon IES AND COLONISTs.
From the preceding view of the colonies prior to 1774, and while the ancient relations between them and the mother country continued, it is most manifest that they were as separate from each other, in all matters of internal government, as they now are. Their only political connection was by their union under one common sovereign, as it is now under the constitution; their governments were in virtue of separate charters then, as they are now under their several constitutions; and no one, or any number of colonies, had any more power within their limits, than the states have now. No other controlling power did, or could exist then, under the old constitution of the kingdom, than does now under that of the Union, save such as it imposed. Though they had assembled in congress to consult on their common concerns, they had never made a government over themselves; and when they met in 1774, their proceedings showed in what capacity they acted. They first resolved, that each colony should have one vote, which was an explicit declaration, that they acted separately in all they did; their declaration of rights and resolutions are also too unequivocal for any double or doubtful meaning to be attached to them. After reciting the grievances suffered in consequence of certain acts of parliament, and of the crown, they declare the character and authority under which they act. “The good people of the several colonies of New Hampshire, Massachusetts Bay, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, New Castle, Kent, and Sussex on the Delaware, Maryland, Virginia, North Carolina, and South Carolina, justly alarmed at these arbitrary proceedings of parliament and administration, have severally elected, constituted, and appointed deputies, to meet and sit in the city of Philadelphia, in order to obtain such establishment as that their religion, laws, and liberties, may not be subverted.” “Whereupon, the deputies, so appointed, being now assembled, in a full and free representation of these colonies, taking into their most serious consideration the best means of attaining the ends aforesaid; do, in the first place, as Englishmen, their ancestors, in like cases have usually done, for asserting and vindicating their rights and liberties, declare,” (Vide ante, p. 44.) “That all the inhabitants of the English colonies in North America by the immutable laws of nature, the principles of the English constitution, and their several charters and compacts, have the following rights:” “Resolved, N. C. D. 1. That they are entitled to life, liberty and property; and they have never ceded to any foreign power whatever, a right to dispose of either without their consent.”