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

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 itseif 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

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;