"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

natural and obvious import. Those of the other class, more fearful of the gradual absorption of the powers of the states, by the assump tion 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 the 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.

The residuary sovereignty of the several states of this Union and the people thereof, cannot be the same as the absolute sovereignty of the one nation and people thereof; which by its own unaided power can institute a government over the whole thirteen states: the term absolute, admits no limitation as to power; residuary, can mean only that residuum which the absolute power has not pleased to exercise. The use of the terms absolute, and residuary sovereignty, thus applied, either in argument or illustration, is, of necessity, with a view to make the constitution operate by its grants and restriction; by an authority paramount to that of the people of the several states; and thus bear essentially on its exposition. Hence, the preamble has ever been the field selected by the first class, whereon to exert their strength, and on which they maintain their proposition; if they abandon that field, the constitution gives them no other defensible position. The object can be no other than by the potency of the preamble, to control the provisions of the constitution; so as to give to the term," the people," the same meaning and reference wherever it is used.

The term is found only in three places; in the preamble it is "the people of the United States;" in the second section, first article, it is "the people of the several states;" and in the tenth amendment "the states respectively, or the people:" in all it is connected with "states;" but the phraseology is different as to both terms. It then becomes all important to examine, whether "the people of the United States," who established the constitution "of the several states;" who elect the "representation from each state;" and "the states respectively or the people," to whom all powers not granted or prohibited, are reserved; refer to the same or different bodies.

It cannot well be doubted, that if the general term in the preamble refers to the whole people in the aggregate, as "the people of the United States;" the still more general term in the tenth amendment must be taken in the same sense, "the people;" if they are so taken, then the intermediate term "the people of the several states," must receive the same interpretation, or there must be this consequence. That the granting, restraining, and the reserved powers, were, and are in the "one people," and the power of organizing and administering the government, is in the "several people of each state;" of course there can be no reserved power in them, and it must remain in that body which could grant, restrain, except and reserve, according to the doctrine of this Court. Any restriction upon it, derived from an external source, would imply a diminution of its sovereignty to the extent of the restriction," &c. 7 Cr. 136. On the other hand, if the three terms mean the same thing, the one people, the words, "several states," "each state,” are made to mean the states in the aggregate; by which the words "several" and "each" will be virtually expunged from the body of the instrument; and the words, "in the aggregate or collectively," inserted by construction. No one, then, can fail to perceive, that by adding these words, or taking out, or neutralizing the words "several" and "each," the whole

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constitution is made to speak in different language; and to express an intention wholly different from that which its words import, read as they are. I, therefore, wholly disclaim this mode of construing the constitution, by adding or altering a word; the tendency whereof is too well understood to be mistaken. It is to draw the attention from the body, the provisions, and the operations of the instrument, in the terms of which there is no ambiguity in defining the term people or states, and confine it to its caption or preamble, which in itself may admit of a reference to suit the object, if it is not compared with what is ordained and established in detail.

By adding to the term, "We, the people of the United States," the word severally, all ambiguity is removed; (if any could exist after connecting it with the second section of the first article); the creating, organizing, and administering power is one. By adding the words, in the aggregate, or collectively, or any others of equivalent import, the two powers are necessarily separated, and must be incompatible, unless one can control the other in its appropriate function; so that if the constitution is to be construed by its preamble only, its meaning will depend on the interpolation of the word severally, or collectively. Now if there is any rule of interpretation, by which the word collectively may be added, so as to make the declaratory part refer to one people in the aggregate, and the ordaining part refer to "the people of the several states which may be included in this Union," and thus bring into action conflicting powers; a fortiori, the word severally may be added, to make the different terms correspond, and indicate the same power, in order to produce harmony between the parts, and make the instrument speak from its four corners, in the same language, and express the same intention. This, however, is not necessary for those who take the power to be several, inasmuch as the uncertainty of the one part is removed by reference to the certainty of the others; but as a matter of right in expounding writings, interpolation is not an exclusive franchise; the power is, in its nature, concurrent in both sides; the propriety of its exercise by either depends on the writing itself, or the nature of the interpolation, and its effect on its sense. Obliteration is next of kin to interpolation, and exercised by the same right; the one operates by addition, the other by subtraction, to change the sense of words or language, in order to put in or take out of the constitution, powers which one party is desirous of including within it, though not granted, and the other of excluding from it those which are granted; one striving to impose new, the other to remove existing restrictions, and thus to expand or contract it to suit their respective purposes. These are two of the modes by which the human intellect has, for fifty years, been exerted, to make a supreme law, by construction and implication, what it ought to have been in terms and declared intention, in the opinion of those who think that the federal government is too weak or too strong, and that of the states are under too little or too much restraint, if the words are taken in their natural and obvious, their ordinary or legally, defined sense. A third