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to two great grievances set forth: “For taking away our charters, abolishing our most valuable laws, and altering, fundamentally, the Jorms of our government:” “For suspending our own legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.” This is the precise effect of the modern interpretation of this great act of the revolution; by which commentators make congress declare, that the very acts of oppression, committed by the king and parliament, against which the states and people contended as violations of their rights, were no longer so when exercised by congress. If the result of the revolution was a change of masters; a mere substitution of a supreme national government over states, with powers more absolute than were ever asserted by king or parliament; then the charters of the states were virtually annulled; their forms of government altered fundamentally, and their own legislatures not only suspended but superseded. It will be left to theorists to reconcile the commentary with the text.
THE ALLIANCE BETWEEN THE STATES BY THE CONFEDERATION.
By these articles, the nature of the confederation, and its objects, were clearly defined: the relations of the states to each other, their separate powers, and those of congress, explicitly declared. They were adopted, not by the people of the states, but by delegates, who were the representatives of the respective state legislatures; who were expressly named as the constituents, who had authorized them to be ratified and confirmed, and in the name and in behalf of each; and which was so done by the delegates who signed the same accordingly; 4 Laws U. S. 19, 20. For present purposes it is necessary to refer only to three articles. “Art. 3. The said states, hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare; binding themselves to assist each other against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretext whatever.” “Art. 9. The United States, in congress assembled, shall have the sole and exclusive right and power of sending and receiving ambassadors, and entering into treaties and alliances; provided, that no treaty of commerce shall restrain the legislative power of the respective states, from imposing such imposts and duties on foreigners, as their own people are subjected to; or from prohibiting the exportation or importation of any species of goods or commodities whatsoever.” I Laws U. S. 16. This alliance, league, or confederacy of the states with each other, can leave no doubt, that up to the time of the final ratification in March, 1781, each state was separately sovereign in its own inherent right; and so remained as to all power not expressly delegated, as was declared in the second article. The third article is also conclusive, that the object of the alliance was to maintain and perpetuate their
separate sovereignty. This is the more manifest, when these articles are taken in connection with the alliance of the states with France.
ALLIANCE BET weeN THE STATES AND FRANCE; AND THE GUARANTY To THEM, BY FRANCE, BY THE TREATY of 1778.
On the same day, when a committee was appointed by congress to prepare and digest the form of a confederation, to be entered into between these colonies, a committee was also appointed to prepare a plan of treaties to be proposed to foreign powers, June 12, 1776; 2 Journ. 198; the instructions to the commissioners were agreed to in September following; 2 Journ. 361. In the same month, plans of these treaties were submitted to and approved by congress, who made out letters of credence and commissions to the commissioners; 2 Secret Journ. Cong, p. 7. As the 9th article of confederation, as drawn up, would give to congress the sole and exclusive power of entering into alliances, on their adoption, it was a sufficient guaranty for its observance by the states; but as congress could not restrain the legislative power of the states over commerce, as resolved in April, 1776, and declared in this article, provision was made on the subject in the 6th article: “No state shall lay any imposts or duties, which may interfere with any stipulations in treaties, entered into by the United States in congress assembled, with any king, prince, or state, in pursuance of any treaties already proposed by congress to the courts of France and Spain;” I Laws U. S. 15. Those of commerce and alliance with France were made in 1778. The commissions, credentials, and treaties, were in the name of “the thirteen United States of North America, to wit: New Hampshire,” &c. 2 Secret Journ. 7; 1 Laws, 74, 95; and the 2d article of the treaty of alliance declares its object most explicitly. “The essential and direct end of the present defensive alliance, is to maintain, effectually, the liberty, sovereignty, and independence, absolute and unlimited, of the said United States, as well in matfers of government, as of commerce.” In the 11th article, the parties make a mutual guaranty; in that of France, “His most Christian majesty guaranties, on his part, to the United States, their liberty, sovereignty, and independence, absolute and unlimited, as well in matters of government as commerce; also their possessions, and the additions or conquests that their confederation may make during the war,” &c. 1 Laws, 95, 98. This guaranty was fulfilled by the treaty of peace, in which “His Britannic majesty acknowledges the said United States, to wit: New Hampshire, &c., to be free, sovereign and independent states.” 1 Laws, 196. This recognition, relating back to the separate or unanimous declarations by the states, as this Court have held it; has the same effect, as if the states had then assumed the same position, by the previous authority of the king; the treaty not being a grant, but a recognition, and subsequent ratification of their pre-existing condition; and all acts which had declared and defined it previous to the treaty, related back to 1776. Such being the relations of the several states, in their federal and foreign concerns, it follows, that as to their internal concerns, they were in the same attitude of absolute and unlimited sovereignty, before the articles of confederation, as they were afterwards, except so far as they abridged it. Each was a party to the treaty of alliance and peace, and each was bound by the guarantee to France, after the confederation was abolished, and the constitution was established, as firmly as before: the states who delayed their ratification remained so bound, for they could by no act of their own, impair the rights of France: and they were equally entitled to the effects of the treaty of peace, whether they became constituent parts of the Union, by ratifying the constitution, or remained foreign states, by not adopting it. Their state constitutions and governments, remained unimpaired by any surrender of their rights; so that of consequence, their sovereignty was perfect, so long as they continued free from any federal shackles; so the states acted, and so the people of each declared, in all their conventions, from 1776 to 1780.
EACH STATE INSTITUTED A GOVERNMENT BY THE AUTHORITY OF THE PEOPLE.
Congress has recommended to the colonies to form governments, “on the authority of the people alone:” this was done by the states who adopted constitutions before, and after the declaration of independence; by the assertion of the people in the separate conventions of each state, that they had by nature and inherent right, all the powers of government, and that none could be exercised by any body unless by their authority. They applied to themselves all the principles announced in their unanimous declaration in congress, in terms incapable of being misunderstood. The people of Pennsylvania declared, “that all power being originally in and consequently derived from the people;” the community hath an indubitable, unalienable, and indefeasible right to reform, alter, or abolish government, in such manner, as shall be by that community judged most conducive to the public weal.” The supreme legislative power shall be vested in a house of representatives, &c. Con. of Pennsylvania 55, 6, 7. September, 1776. The people of North Carolina declared, that all the territory within the bounds of the state, was the right and property of the people, to be held by them in full sovereignty. Laws of N. C. 275, 6. Book Const. 234, 5. December, 1776. Those of New York. “That no authority shall, on any pretence whatever, be exercised over the people or members of this state, but such as shall be derived from, or granted by them.” 1 Rev. Laws, 249. M'Cauley’s Hist. N. Y. 231, 2 April, 1777. In Massachusetts. “The people of this commonwealth, have the sole and exclusive right of governing themselves, as a free, sovereign, and independent state, and for ever hereafter shall exercise and enjoy every power, jurisdiction and right, which is not or may not hereafter be by them expressly delegated to the United States of America in congress assembled.” Book Const. 53; Laws Mass. 6. March, 1780. Delaware, Maryland, and Georgia, adopted constitutions in 1776, and 1777, and the people of Vermont, though not a state, made a declaration of their political rights in July, 1777, and adopted a constitution. Vermont St. Pap. 241. The governments which were instituted, were all on the same principles as those which have been specified, and the states were each in the same political situation; “sovereign, independent communities,” as they were styled by congress, in their letter recommending the adoption of the confederation. 1 Laws U. S. 12. In this, their sovereign character, the people of each state could create what corporations they pleased for their own government, either by written or tacit delegation of power, as best pleased them; their action in either mode had the same effect, whether the body politic to be created was for one, or all the states, it was the exertion of the same sovereign authority, as the people; within the limits of their own state, empire, or kingdom. Both corporations, state and federal, were formed on the same authority and in the same right; and as in England, the three states of the kingdom, comprising all the people thereof, acting, whether by organic, or administrative power, in their several and distinct estates, by their representatives respectively; had formed, “the great corporation or body politic of the kingdom.” The parliament. The legislative power. The government established by the people. 1 Bl. Com. 153, 162. So has our new constitution in writing, signed by the separate estates or states of the Union, created its great corporation; not as our old one did, a supreme consolidated government of the states, but “the federal government of these states,” as the framers thereof called it in their letter to congress; and as the several states declared in the heading, by ordaining and establishing this constitution for the United States of America, as the several states, each for itself, had done before, with the two exceptions. When the people of all the states, suffering under oppression, acted by their rights of inheritance from their ancestors, followed their example by drawing their swords upon their sovereign in defending them; declared, as had been done in time immemorial: “Nollumus leges angliae mufare. The people of those two states, in their own characteristic way, by deeds rather than words, content with what their representatives in congress had declared for them, and in their name, independence in fact; adhered not only to the laws, but the usages of old, and established their great corporation, by their silent consent, in submitting to the supreme legislative power of the states; as exercised by their representatives chosen in towns: a governor and the members of the upper house, by the people of the state at large. Thus, their charter and legislative usage, became their constitution, and so continued; the tacit practical consent of the people, being taken as equivalent to a formal delegation of power in convention; and so considered by this Court. 3 Dall. 398, 400; 2 Pet. 656, 7.
A reference to the other eleven state governments, will show by what people, and of what state, they were constituted by organic power, original, inherent, and sovereign, whether single or connected, in one or thirteen potentates. It will also show, that if there is, or is to be, any harmony between the state and federal systems, it arises by the power which created both, being the same; and that the constitutions of government, over and within both, must be so construed, as to avoid any discrepancy between them, in their origin, organization, or action.
EACH STATE was “A SINGLE sover EIGN Power,” IN ADoPTING THE CONSTITUTION.
When we thus find that each state had thus separately, either in their conventions or practically, declared, asserted, and exercised their power of instituting a government for each, before 1787; and a federal government for, and over all, for federal purposes, as then proposed and adopted, in 1788; we can look back, and in reviewing their progress from their dependent condition as colonies, to their independence as states, see and understand the power which effected the conversion by the people of each state, who transferred from their local, to their federal legislature, federal powers, by their cession, in the grant. And in its provisions we can also see, that the congress has accepted it; is organized under it; acts and must continue to act pursuant to its ordinances, through all time, as the constituent of the whole agency delegated to the government. Then, taking the relation of the states to each other, as it exists under the constitution, and as declared by this Court, in one uniform and consistent series of adjudication, from 6 Cr. 136, to 2 Pet. 590, 1; that “The several states are still foreign to each other, for all but federal purposes;” their position, as “a single unconnected sovereign power,” before and without any federation between them, is an inevitable consequence.
THE CONSTITUTION IS A CESSION OF POWER BY THE PARTICULAR STATES; oper ATING AS A TREATY OF CESSION, BY A FOREIGN STATE TO THE UNITED STATES.
The operation of the constitution then, must, of necessity, be like that of a treaty of cession, by a foreign state to the United States. As the states are still foreign to each other for all but federal purposes, (they were entirely so before the confederation of 1781, and remained so after its dissolution, till they severally entered into the new one;) the United States could have neither a right of soil or jurisdiction, propriety or dominion, within any particular state, but by a cession from the state by its legislature, or a convention of the people. The act or deed of cession is the title to power or property, according to its terms, operating by way of grant; a treaty, compact,