which exists by its own authority, or is introduced by its permission." 6 Wh. 429; 4 Pet. 564. "The jurisdiction of the nation within its own territory, is necessarily conclusive and absolute; it is susceptible of no limitation not imposed by itself. Any restriction upon it derived from an external source, would imply a diminution of its sovereignty, to the extent of the restriction, and an investment of that sovereignty to the same extent, in that power which could impose such restriction. All exceptions therefore, to the full and complete power of a nation within its own territories, must be traced up to the consent of the nation itself. They can flow from no other legitimate source. 7 Cr. 136.

In comparing these expressions of the Court with those of the old congress, it will be seen how perfectly they accord with each other in the use of terms. "The constituent members," 1 Journ. 61; the 66 state,' ," from which we derive our origin, 66; "our fellow subjects in any part of the empire," 138. "Societies or governments, vested with perfect legislatures, were formed under charters from the crown, and an harmonious intercourse was established between the colonies, and the kingdom from which they derived their origin,” 134, 141: "We mean not to dissolve that union, which has so long and so happily subsisted between us," and have no design "of separating from Great Britain, and establishing independent states," 138. "The union between our mother country and these colonies," &c.; "your loyal colonists," doubted not but that they should be admitted with the rest of the empire," &c., 140; "the British empire," 141; "the whole empire," 147, 8; "the state of Great Britain;" "North America," "wishes most ardently for a lasting connection with Great Britain," 149. "America is amazed," &c., 171; "The several colonies of it," &c., 27; "these colonies;" "the English colonies in North America;" "the respective colonies," 159, 60; "these his majesty's colonies," 289. "The United Colonies of North America," 134. The colonies of North America, 139. The twelve United Colonies, 142, 156, 7. Twelve ancient colonies, 149. Twelve united provinces, viz: &c., 152. The inhabitants and colonies of America, 153. The united colonies of North America, &c., A congress, consisting of twelve United Colonies, assembled, 169. The thirteen United Colonies in North America, 263. All these are mere names, and the different terms of designation, which mean the same thing; so as to the name and term applied to the people of a state, kingdom, empire, or colony.

168.

66

"The people of America," "the good people of the several colonies of North America," &c., 27; "the inhabitants of," &c., 28; "the people;" "English colonists;" Ib. "Americans," "the people of Great Britain," "the inhabitants of British America," 30, 36, 145. Proprietors of the soil of America," 37; "faithful subjects of the colonies of North America," 63; "your faithful people in America;" "your whole people," 67; "the good people of these colonies, 137, 139; "your loyal colonists," 141, 147; "the people of twelve ancient colonies," 149; "the people throughout all these

provinces and colonies," 170, 168, 264; "the people of these united colonies," 265.

These references suffice to show how names and terms are used by statesmen and judges, by congress, and this Court. It needs no reasoning to show, that the varied phraseology in the same political act, or judicial opinion, or in different ones, at different times, cannot change the thing referred to.

There is no difficulty in defining a state or nation. It is a body politic, a political community, formed by the people within certain boundaries; who, being separated from all others, adopt certain rules for their own government, with which no people without their limits can interfere. The power of each terminates at the line of separation; each is necessarily supreme within its own limits: of consequence, neither can have any jurisdiction within the limits of another, without its consent. The name given to such community, whether state, nation, power, people, or commonwealth, is only to denote its locality, as a self-governing body of men united for their own internal purposes, if two or more think proper to unite for common purposes, and to authorize the exertion of any power over themselves, by a body composed of delegates or ambassadors of each, they confederate. Each has the undoubted right of deciding, what portion of its own power, it will authorize to be exerted in a meeting, assembly, or congress, of all; what it will restrain, prohibit, or qualify. If this can be done by common consent, the terms of their union are defined, and according to their nature, they form a mere confederacy of states, or a federal government; the purposes and powers of which depend on the instrument agreed upon. If they cannot agree, then each state instructs its delegates according to its own will, and sends them to the body in which all the states are assembled by their deputies: each state is considered as present, and its will expressed by the vote of its delegates. The congress of states are left, in such case, to perform such duties as are enjoined, and execute such powers as are given to them, by their respective and varying instructions; the extent of which is testified in the credentials of the separate delegations, as before the confederation of 1781.

It is not necessary to give efficiency to the acts of the congress, that their power be derived from one state, nation, or people; if they are authorized by each to act within their boundaries, they can act within and on the whole; this action of congress does not make the states, or the people thereof one; they remain as distinct as before any confederacy; but congress, acting as the common legislature of each, for specified purposes, its laws operate in and over each state, as state laws do for state purposes. The power exercised is derived from the same people, who distribute it between the two governments, as they may think most conducive to the welfare of each and all; the machinery is simple, one moving perpetual power directs two machines, which will operate in harmony, by the lines of separation, drawn by the same hand. But if the line and rule are placed in one hand, guided by a master spirit, with controlling power over

thirteen subordinate ones; the one declares what are federal purposes, delegates federal powers, restricts states, and prohibits state laws, by its single sovereign power; and as to its own will and pleasure shall seem fit. The lines of separation between the states are effaced; the people of all are "compounded into one mass,' having such supreme power as they may choose to assume; leaving the states and people in their distinct capacities, only that portion of sovereignty which remained in them, after the paramount power had taken to itself all it wanted; and had denied to the governments of the state the exercise of such powers, as the government of the Union could not use; annulling or restraining them, according to the supreme law, which was competent to effect whatever it ordained.

If such was the power which created the constitution, then our federal system is like the solar; one sun, with as many planets as there are "the several states, which may be included within this Union:" with both systems alike created and put in motion, by an invisible, incomprehensible, but almighty power, behind and beyond them both, which can regulate and control the movements of all, at its sovereign will.

Such a political creation may be a sublime conception; present "the august spectacle of an assemblage of a whole people, by their representatives in convention;""conscious of the plenitude of their own proper sovereignty, declaring with becoming dignity, We, the people of the United States, do ordain and establish this constitution for the United States of America." Vide 12 Wh. 354; 2 Dall. 471.

There is no American, who, in looking to the blessings which the establishment of the constitution has diffused over the whole Union, can repress those feelings, which, like an inspiration, carry the mind beyond the regions of fact, to those of fancy and imagination; and no man more than the first, and the late Chief Justice of this Court, would give way to the effusions of their patriotism, when contemplating the glorious results of the happy consummation of a revolution, in which one had devoted his time and labours to his country, and the other pledged his life for her defence. Yet, when we descend from fancy to fact, look to the convention, in which the people did assemble, how they acted, what they did, the work which came finished and perfect from their hands, and the scenes of action; there is indeed a moral grandeur and sublimity in the whole, which impresses itself on the mind with irresistible force.

Cool reflection, however, corrects the impressions of enthusiasm, reason and judgment concurring with more exciting impulses, convince us; that though the occasion and the act were of imposing grandeur and dignity, august in contemplation, and sublime in its beneficent results; yet, like the constitution, and its best expositor, that these impressions are stamped on the mind, by the simplicity, rather than the splendour of exhibition.

3

THE ADOPTION OF THE CONSTITUTION.

Twelve states met in convention by their separate delegations, to digest, reduce to form, and submit to a congress of the states, a frame of government for such of the states, as should, in conventions of the state, ratify it as their act: the frame was made, it proposed the institution of a government between the states who should adopt it, nine of whom were declared competent. These separate conventions were not to be like the general convention, composed of members appointed by state legislatures, with power only to propose an act to them as their constituents, and through them to the people of the state. To the proposed act was prefaced a declaration, that it was to be the act of the people, and a constitution for a government, such as it delineated. So it was submitted to congress, and by them to each state legislature, who called conventions of delegates elected by the people of each state; nine of these conventions separately ratified the act, in the name of the people who had authorized it; and thus the proposed frame of government was established as a constitution for those nine states, who then composed "The United States of America;" and between themselves only. The declaration, in its front, therefore, necessarily refers, not to the time when it was proposed, but when it was ordained and established, by "the ratification of the conventions of nine states," as this was done by the people of those states; so the act declares, "We, the people of the United States, (which have ratified) do ordain (by our separate ratifications) this constitution," for (the states, and between the states so ratifying the same, who are thereby) "The United States of America."

Here is simplicity of movement, and plainness in delineating, by whom, for whom the act was done, and what the act was when ordained. All history proves, and all opinions agree that it was in this way that the great work was accomplished in fact, and if so, there was no other way in which it could have been done; no reasoning can reverse the fact, or ingenuity make the act of nine distinct bodies of people the act of one, in whom all the power exerted, was previously vested.

How it may be in theory, is not material; but taking the constitution as the creation of a competent power, existing and acting practically, and not one ideal and imaginary, operating only by theory; I find in the fifth article, and the tenth and eleventh amendments, express provisions, which point to the true source of power from which it emanated.

Every part of the constitution may be amended save one, without invoking the power of the whole people, or all the states; the amending power is in "the legislatures of three-fourths of the states," or by conventions of three-fourths thereof, "as the one or other mode may be proposed by congress." It depends on the number of the states, when each acts by its legislative power; and the majority of the delegates of the people in convention of each state, when it acts by its people, not a majority of the people of all.

1

The tenth amendment excepts from the constitution, and reserves "to the states respectively, or the people," all powers not delegated or prohibited. The eleventh amendment annuls a jurisdiction expressly granted to the judicial power, by the third article of the constitution; by prohibiting its exercise, in suits against a state, by individuals, it operates on suits pending, and makes void the exercise of any judicial power in such cases, either past, present, or future. 3 Dallas, 382, 3; 6 Wh. 405 to 409, S. P.; 9 Wh. 206, 16, 858; 12 Wh. 438; 6 Pet. 310, 741.

When, then, it is undeniable that there is behind the constitution a power which can, by amendments, erect a new structure of government; revoke the grant of any of the powers of congress; remove the restrictions on the states; make exceptions to the grant, and reservations out of it, of what would be otherwise included in it; and annul the judicial power, in cases on which they were actually exercising an undoubted constitutional jurisdiction; it has seemed to me, that the judicial eye could easily see, and the judicial mind fully understand, what, and where was that power, which forbade this Court to move; and which it felt bound to obey, when the constitution authorized them to proceed to judgment, as the right and law of the case should appear.

It is no imaginary power that can arrest the judicial arm, or a subordinate power that can, by its own authority, avoid the exercise of that judicial power over itself, which has been granted by a paramount power. Nor can "the absolute sovereignty, of the nation, which when the constitution was adopted," was "in the people of the nation;" be controlled by the "residuary sovereignty" of threefourths of the states, in the people thereof, when the amendments were made. That sovereignty which can control all others, must be absolute: that which is controlled must be subordinate. If it is said that the constitution authorized this amendment, we should impute little of wisdom, foresight, or common prudence, to those who framed or adopted it, by ascribing its creation to a power so indifferent to its preservation; or to make three-fourths of the states competent to throw off the shackles on their laws, which all the states, and the whole people thereof, had imposed. There cannot, therefore, be, in my opinion, a proposition more hostile to the provisions of the fifth article, and these amendments as understood by this Court, than that the constitution was a creation of the whole people of the United States, in their aggregate collective capacity; as the one people, of one nation or state, acting by the plenary sovereignty, and in the unity of absolute political power. In thus viewing this amendment, as to "the feature" which it thus expunged, I use it as this Court does. "This feature is no longer found in the constitution; but it aids in the construction of those clauses with which it was originally connected." 6 Cr. 139. Independently of these considerations, there is another which arises from the relative condition of the states as to extent and population; to which we must refer for the discovery of the intention of those who have left us a work "designed for immortality." 6 Wh. 387.