is, by supposing objects and purposes to have been intended by the particular provisions, which neither declare or refer to them; and making them the premises, draw from the words such conclusions as must follow from such premises, whether the words warrant them or not. Either mode effects the object; let words be added or taken out; let us assume certain objects and purposes, motives and intentions, not apparent in express words, or necessary implication resulting from those used; any one may make the constitution conform to his opinions, and meet his purposes: but it will not be the same as when it came from those who framed or adopted it, or as it should be read by the judicial eye. Whenever we depart from the established rules for expounding grants, and insert a new subject matter, on which power can be exerted by colour of the grant merely, and not by fair exposition, the power is absolute; for the constitution limits only those federal powers which it grants expressly in words; or in such terms as by their force and meaning necessarily imply it. So, when restrictions are imposed on states in definite cases, their extension in either mode, to other cases, is capable of no limitation; so when the same process is applied to narrow the powers of the one, or the restrictions on the other governments; or to expand or contract the exceptions on either powers, or the reservations of the amendments. The work of plain men must be explained by plain rules; those of subtlety and refinement tend to pervert its meaning and impair its effect: it cannot be a bond of perpetual union, by adding to, diminishing, or altering any term or clause which can change its sense in any way by mere implication: if it is made to speak in language different from its expressed or obvious meaning, it will defeat its own declared objects, and become the apple of discord, and the germ of disunion.

It tends little to the elucidation of truth from any writing, to dwell too much on mere phraseology, when it is evidently not the true index to its meaning: it tends to obscure it, when its substantial provisions are not closely examined by authoritative rules, and mere opinion substituted as the test of intention. The weighty matters of constitutional law are not in mere words and terms of designation: there are some legal instruments of which they may be the essence, or affect their operation; such as the technical terms of some art or science, which require research to find out their peculiar meanings, when they are used in a sense different from common import.

But when we approach an instrument so sacred as the constitution, discussions about words are dangerous, unless, when their meaning is admitted, and the intent is apparent; the contest is as to the phraseology or mode of expressing it, which is most appropriate or correct, according to its classical or other standard of definition, use or application. Without such admission, and when words are intended to be made substance, and terms things; there is great danger of an undue importance being attached to them, especially on those, upon which so much depends as those in the preamble. The great question is, what was the substantive power, the acting thing, which

created the federal government, infused vitality and efficiency into its action; if we suffer our minds to be drawn from the great first moving power, to the mere terms which denote it, by engaging in a war of words, we shall pursue a phantom, a phrase. The thing sought will be first overlooked, next forgotten, and another be taken for it; and in the end we may repudiate that power, that alone did or could act; and conclude, that what has been done, was by a power which never did, could, or can act, so as to effect the declared object, which it is admitted has been actually effected.

Apprehensions of this nature are not chimerical; they have been felt and expressed by this Court, after the experience of forty years; during which it had been seen, that discussions on words and terms had been made, with the endeavour to make the constitution refer to names not things. It had been carried so far, that the appropriate organ of the Court, thus expressed his and the sentiments of the majority, in the following language: in the exposition of a clause in the 10th section of the 1st article of the constitution, on which one of the causes now before us depends, viz: Briscoe et al v. The Commonwealth Bank of Kentucky. It is due, however, to the very able argument on both sides, to declare, that the remarks are not applicable to the course taken at this time, or intended to be so applied.

"And can this make any real difference? Is the proposition to be maintained, that the constitution meant to prohibit names, not things? That a very important act, big with great and ruinous mischief, which is expressly forbidden by words most appropriate for its description, may be performed by the substitution of a name? That the constitution, in one of its most important provisions, may be openly evaded by giving a new name to an old thing? We cannot think so. We think the certificates emitted under the authority of this act, are as entirely bills of credit, as if they had been so denominated in the act itself." 4 Pet. 433, Craig v. Missouri. In the entire correctness of these views, no one of that majority concurred more cordially than myself; and having so concurred, I may apply it, mutatis mutandis, to a term intended, not only to affect "the most important provisions of the constitution;" but to remove it, together with all its erections, from its foundation on the power of the people of the several states, to one resting on the power of one people of all the states; as the original power which exists, if at all, only in the preamble, and is unknown to any of its provisions. The same venerated organ of the Court had, in a great case and opinion, given his and their views on attempts to give to the constitution, "that enlarged construction, which would extend words beyond their natural and obvious import," by an express disclaimer, 9 Wh. 188: and in a subsequent part, thus expresses himself, in language equally appropriate to the two classes of statesmen and jurists. Those who desired to extend too widely, or contract too narrowly, the powers of the government, "in support of some theory not to be found in the constitution."

"Powerful and ingenious minds, taking as postulates, that the

powers expressly granted to the government of the Union, are to be contracted by construction into the narrowest possible compass, and that the original powers of the states are retained, if any possible construction will retain them; may, by a course of well digested, but refined and metaphysical reasoning, founded on these premises, explain away the constitution of our country; and leave it a magnificent structure to look at, but totally unfit for use. They may so entangle and perplex the understanding, as to obscure principles which were before thought quite plain; and induce doubts, where, if the mind were to pursue its own course, none could be perceived. In such a case, it is peculiarly necessary to recur to safe and fundamental principles; to sustain those principles; and when sustained, to make them the tests of the arguments to be examined." 4 Wh. 222; Gibbons v. Ogden.

In this great opinion, concocted by a great mind, in which was stored the true principles of the constitutional law, as understood in the olden time, and as the illustrious father of federal jurisprudence expounded them in our own times; we find it concluding with sentiments, alike worthy of the great and good magistrate who expressed them; the tribunal whose judgment he pronounced; and the instrument as to which it was his first and last aspiration; "esto perpetua." As that case and opinion too, bears most essentially on one of the present ones, the Corporation of New York v. Miln; inclination and duty alike, induce me to follow in the path thus illumined, and with such a guide, refer to safe principles, sustain and make them the tests of the merits of all the cases before us. Assuming, that the principles of the constitution are "safe" and "fundamental;" that there can be no exposition of its words and meaning, so authoritative as that of this Court; I am not without the hope, that when the text and commentary are found to be in perfect harmony, there may be less discord concerning them, in judicial opinions, at least, if not in those of the profession, than there has been.

THE CONSTITUTION OF ENGLAND, THE MODEL OF OURS.

No men were better acquainted with the jurisprudence of England, in all its branches, or had studied it more diligently, than the statesmen of the revolution, and those who framed the constitution; our institutions, our ideas of government, our principles of law, the rules of rights and property, were as perfectly English as our habits and language. The colonists based their course upon the constitution and laws of England; it was in them that they found out the nature of the government under which they lived; a definition of the rights and powers of the people; the duties of the government; and a line drawn between the asserted and legitimate powers of parliament and royal prerogative. Their appeals and remonstrances were founded on the principles of a constitution, understood and respected in both countries, as the standard, line, and rule of right and power, though it was unwritten; there were customs, charters of property and franchises, a magna charta, and acts of parliament, for their confirmation;

which secured the people in the enjoyment of their private and corporate rights, against violation by any law. Grants, charters, and customs, confirmed by parliament, had the force of statutes; and though they could be impaired or annulled by its supreme and transcendant power, in the mother country, where the people were represented; the colonists denied the power, unless they were also represented. They followed the examples of their ancestors, in making a declaration of their rights and wrongs at the commencement of their struggle; in which they claimed and complained as Englishmen, entitled to the benefit of English law. Taking their stand on its principles, they asserted them in all their public acts, which led to the revolution; and when they resolved on renouncing allegiance, and dissolving connection with the English government, congress did what parliament had done at the revolution of 1688. When they declared the throne vacant, and who should thenceforth occupy it, they also declared to whom allegiance was due, and prescribed the form of the oath; and when the change of government was effected in fact, announced it by a solemn declaration of the causes which led to it. Vide 3 Ruff. Statutes, 415, 440. The proceedings of parliament were a guide and the pattern of those of the states, and congress, from 1774, to July, 1776. The same principles pervaded the subsequent proceedings of both, till the present government was established; but their experience had taught them, that two great changes were indispensable, in order to avert, for the future, the perils and evils of the past. That the supreme power of government must not be vested in any legislative body, as it was in parliament; that the power of the people must be absolute and unlimited over all government; and that no power should be exercised, unless by their own authority. That the powers to be exercised by the legislature, as well as those prohibited, excepted, qualified, or reserved, should be defined by a written constitution of government; so that there might be more certainty and safety in ascertaining its meaning as a supreme law, than when it depended on usage, custom, and precedent. These changes were made by all the states but two, during the revolution.

GRANTS TO BE CONSTRUED ACCORDING TO THE LAW, AS IT WAS WHEN THEY WERE MADE.

To understand the constitution then, we must trace its principles, terms and provisions, back through the leading acts of the people, states, and congress, to the great fountain of constitutional, statute, and common law, from which our statesmen traced our whole system of jurisprudence; and by a careful examination of the whole ground, endeavour to discover the intention of those who framed, who adopted the instrument, and its own expressed intention. That it is a charter of government, a grant of power, all admit: it is also an ancient charter, for the federal government rests upon it as a fundamental law; those of the states also, are regulated by it in its grants, as well as its restrictions; it ought therefore, to be expounded, as all

such grants and charters are, according to what the law was at the time of making them. Co. Litt. 9, b; 94, b; 4 D. C. D. 546; and "according to ancient allowance," 2 Co. Inst. 282, a; "Modern methods of conveyancing are not to be construed to affect ancient notions of equity." Amb. 288. by Lord Hardwicke. No subsequent judge can alter or vary from the law, according to his own private sentiments; he being sworn to determine, not according to his private sentiment, but according to the known laws and customs of the land; not delegated to pronounce a new law, but to maintain and expound the old one. 1 Bl. Com. 70. "The common law hath no controller

in any part of it;" but by parliament; and if not "abrogated or altered," then it "remains still." "It appears in magna charta, and other ancient statutes." Co. Litt. 115, b.

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This Court has declared, that they know no reason why a rule of interpretation to which all assent," should not be as applicable to the constitution as to other instruments," 12 Wh. 438; that the "interpretation of the terms," depends on "the language of the constitution itself, and the mischief to be prevented; which we know from the history of our country.” 4 Pet. 431, 2.

Let whatever meaning be given to the constitution; whether a league, confederation, agreement, compact or treaty, "between the states so ratifying the same,' as it expresses itself in the seventh article; its substance, essence, and nature, is a contract between states or nations, 2 Peters, 314; a grant, 9 Wheat. 189; speaking in the words of the grantor, in reference to the thing granted, and the thing reserved, 6 Pet. 741; with exceptions implying the pre-existence of the power excepted, 12 Wh. 438; 2 Pet. 313; 9 Wh. 200, 207; with prohibitions which restrict the grantor himself, 7 Cr. 136; and referring to the grantor all power not granted or prohibited, 1 Wh. 325; which remain in the grantor as before the grant, 4 Wh. 193; operating as an exclusion from the grant of what is excepted, reserved, or retained, 6 Pet. 312, 741. It is a settled rule, that grants by states, of things, to which the grantor has no right or title, are void, 9 Cr. 99; 5 Wh. 303; 6 Pet. 730: and that no external power can restrict a state, 7 Cr. 136.

THE MEANING OF THE TERMS STATES AND PEOPLE.

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It must then be ascertained, what is the constitutional meaning of the people, and the states. In the main position which I assumed, and have endeavoured to maintain, that each state was a single, supreme, sovereign, power," exclusive, and absolute, within its own. boundaries; unless by its own grant by the constitution, and the restraints it has thereby imposed on itself; I can understand it in all its parts.

The people of a state, who had by their state constitution, granted the power of legislation to their state legislatures; had plenary power, to take from them such portions as they pleased, and by their grant vest them in a federal legislature.

The same people could, by the same power which made their con