Part 19

The history of the world affords no such example of two separate and independent governments established over the same people, nor can it exist except in governments founded on the sovereignty of the people. In monarchies and other governments not representative there can be no such division of power. The government is inherent in the possessor; it is his, and can not be taken from him without a revolution. In such governments alliances and leagues alone are practicable. But with us individuals count for nothing in the offices which they hold; that is, they have no right to them. They hold them as representatives, by appointment from the people, in whom the sovereignty is exclusively vested. It is impossible to speak too highly of this system taken in its twofold character and in all its great principles of two governments, completely distinct from and independent of each other, each constitutional, founded by and acting directly on the people, each competent to all its purposes, administering all the blessings for which it was instituted, without even the most remote danger of exercising any of its powers in a way to oppress the people. A system capable of expansion over a vast territory not only without weakening either government, but enjoying the peculiar advantage of adding thereby new strength and vigor to the faculties of both; possessing also this additional advantage, that while the several States enjoy all the rights reserved to them of separate and independent governments, and each is secured by the nature of the Federal Government, which acts directly on the people, against the failure of the others to bear their equal share of the public burdens, and thereby enjoys in a more perfect degree all the advantages of a league, it holds them together by a bond altogether different and much stronger than the late Confederation or any league that was ever known before--a bond beyond their control, and which can not even be amended except in the mode prescribed by it. So great an effort in favor of human happiness was never made before; but it became those who made it. Established in the new hemisphere, descended from the same ancestors, speaking the same language, having the same religion and universal toleration, born equal and educated in the same principles of free government, made independent by a common struggle and menaced by the same dangers, ties existed between them which never applied before to separate communities. They had every motive to bind them together which could operate on the interests and affections of a generous, enlightened, and virtuous people, and it affords inexpressible consolation to find that these motives had their merited influence.

In thus tracing our institutions to their origin and pursuing them in their progress and modifications down to the adoption of this Constitution two important facts have been disclosed, on which it may not be improper in this stage to make a few observations. The first is that in wresting the power, or what is called the sovereignty, from the Crown it passed directly to the people. The second, that it passed directly to the people of each colony and not to the people of all the colonies in the aggregate; to thirteen distinct communities and not to one. To these two facts, each contributing its equal proportion, I am inclined to think that we are in an eminent degree indebted for the success of our Revolution. By passing to the people it vested in a community every individual of which had equal rights and a common interest. There was no family dethroned among us, no banished pretender in a foreign country looking back to his connections and adherents here in the hope of a recall; no order of nobility whose hereditary rights in the Government had been violated; no hierarchy which had been degraded and oppressed. There was but one order, that of the people, by whom everything was gained by the change. I mention it also as a circumstance of peculiar felicity that the great body of the people had been born and educated under these equal and original institutions. Their habits, their principles, and their prejudices were therefore all on the side of the Revolution and of free republican government.

Had distinct orders existed, our fortune might and probably would have been different. It would scarcely have been possible to have united so completely the whole force of the country against a common enemy. A contest would probably have arisen in the outset between the orders for the control. Had the aristocracy prevailed, the people would have been heartless. Had the people prevailed, the nobility would probably have left the country, or, remaining behind, internal divisions would have taken place in every State and a civil war broken out more destructive even than the foreign, which might have defeated the whole movement. Ancient and modern history is replete with examples proceeding from conflicts between distinct orders, of revolutions attempted which proved abortive, of republics which have terminated in despotism. It is owing to the simplicity of the elements of which our system is composed that the attraction of all the parts has been to a common center, that every change has tended to cement the union, and, in short, that we have been blessed with such glorious and happy success.

And that the power wrested from the British Crown passed to the people of each colony the whole history of our political movement from the emigration of our ancestors to the present day clearly demonstrates. What produced the Revolution? The violation of our rights. What rights? Our chartered rights. To whom were the charters granted, to the people of each colony or to the people of all the colonies as a single community? We know that no such community as the aggregate existed, and of course that no such rights could be violated. It may be added that the nature of the powers which were given to the delegates by each colony and the manner in which they were executed show that the sovereignty was in the people of each and not in the aggregate. They respectively presented credentials such as are usual between ministers of separate powers, which were examined and approved before they entered on the discharge of the important duties committed to them. They voted also by colonies and not individually, all the members from one colony being entitled to one vote only. This fact alone, the first of our political association and at the period of our greatest peril, fixes beyond all controversy the source from whence the power which has directed and secured success to all our measures has proceeded.

Had the sovereignty passed to the aggregate, consequences might have ensued, admitting the success of our Revolution, which might even yet seriously affect our system. By passing to the people of each colony the opposition to Great Britain, the prosecution of the war, the Declaration of Independence, the adoption of the Confederation and of this Constitution are all imputable to them. Had it passed to the aggregate, every measure would be traced to that source; even the State governments might be said to have emanated from it, and amendments of their constitutions on that principle be proposed by the same authority. In short it is not easy to perceive all the consequences into which such a doctrine might lead. It is obvious that the people in mass would have had much less agency in all the great measures of the Revolution and in those which followed than they actually had, and proportionably less credit for their patriotism and services than they are now entitled to and enjoy. By passing to the people of each colony the whole body in each were kept in constant and active deliberation on subjects of the highest national importance and in the supervision of the conduct of all the public servants in the discharge of their respective duties. Thus the most effectual guards were provided against abuses and dangers of every kind which human ingenuity could devise, and the whole people rendered more competent to the self-government which by an heroic exertion they had acquired.

I will now proceed to examine the powers of the General Government, which, like the governments of the several States, is divided into three branches--a legislative, executive, and judiciary--each having its appropriate share. Of these the legislative, from the nature of its powers, all laws proceeding from it, and the manner of its appointment, its members being elected immediately by the people, is by far the most important. The whole system of the National Government may be said to rest essentially on the powers granted to this branch. They mark the limit within which, with few exceptions, all the branches must move in the discharge of their respective functions. It will be proper, therefore, to take a full and correct view of the powers granted to it.

By the eighth section of the first article of the Constitution it is declared that Congress shall have power--

First. To lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States;

Second. To borrow money;

Third. To regulate commerce with foreign nations, and among the several States, and with the Indian tribes;

Fourth. To establish an uniform rule of naturalization and uniform laws respecting bankruptcies;

Fifth. To coin money, regulate the value thereof and of foreign coin, and fix the standard of weights and measures;

Sixth. To provide for the punishment of counterfeiting the securities and current coin of the United States;

Seventh. To establish post offices and post-roads;

Eighth. To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

Ninth. To constitute tribunals inferior to the Supreme Court, to define and punish piracies and felonies committed on the high seas, and offenses against the laws of nations;

Tenth. To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

Eleventh. To raise and support armies;

Twelfth. To provide and maintain a navy;

Thirteenth. To make rules for the government of the land and naval forces;

Fourteenth. To provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions;

Fifteenth. To provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be in the service of the United States, reserving to the States the appointment of the officers and the authority of training the militia according to the discipline prescribed by Congress;

Sixteenth. To exercise exclusive legislation in all cases whatever over such district (not exceeding 10 miles square) as may, by the cession of particular States and the acceptance of by Congress, become the seat of Government of the United States; and to exercise like authority over all places purchased, by the consent of the legislature of the State in which the same may be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;

Seventeenth. And to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States or in any department or officer thereof.

To the other branches of the Government the powers properly belonging to each are granted. The President, in whom the executive power is vested, is made commander in chief of the Army and Navy, and militia when called into the service of the United States. He is authorized, with the advice and consent of the Senate, two-thirds of the members present concurring, to form treaties, to nominate and, with the advice and consent of the Senate, to appoint ambassadors, other public ministers, and consuls, judges of the Supreme Court, and all other officers whose appointments are not otherwise provided for by law. He has power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. It is made his duty to give to Congress from time to time information of the state of the Union, to recommend to their consideration such measures as he may judge necessary and expedient, to convene both Houses on extraordinary occasions, to receive ambassadors, and to take care that the laws be faithfully executed.

The judicial power is vested in one Supreme Court and in such inferior courts as Congress may establish; and it is made to extend to all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made under their authority. Cases affecting ambassadors and other public characters, cases of admiralty and maritime jurisdiction, causes in which the United States are a party, between two or more States, between citizens of different States, between citizens of the same State claiming grants of land under different States, between a State or the citizens thereof and foreign States, are specially assigned to these tribunals.

Other powers have been granted in other parts of the Constitution which, although they relate to specific objects, unconnected with the ordinary administration, yet, as they form important features in the Government and may shed useful light on the construction which ought to be given to the powers above enumerated, it is proper to bring into view.

By Article I, section 9, clause 1, it is provided that the migration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by Congress prior to the year 1808, but a tax or duty may be imposed on such importation not exceeding $10 for each person.

By Article III, section 3, clause 1, new States may be admitted by Congress into the Union, but that no new State shall be formed within the jurisdiction of another State, nor any State be formed by the junction of two or more States or parts of States without the consent of the legislature of the States concerned as well as of the United States. And by the next clause of the same article and section power is vested in Congress to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United. States, with a proviso that nothing in the Constitution shall be so construed as to prejudice any claims of the United States or of any particular State.

By Article IV, section 4, the United States guarantee to every State a republican form of government and engage to protect each of them against invasion; and on application of the legislature, or of the executive when the legislature can not be convened, against domestic violence.

Of the other parts of the Constitution relating to power, some form restraints on the exercise of the powers granted to Congress and others on the exercise of the powers remaining to the States. The object in both instances is to draw more completely the line between the two governments and also to prevent abuses by either. Other parts operate like conventional stipulations between the States, abolishing between them all distinctions applicable to foreign powers and securing to the inhabitants of each State all the rights and immunities of citizens in the several States.

By the fifth article it is provided that Congress, whenever two-thirds of both Houses shall deem it necessary, shall propose amendments, or, on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which in either case shall be valid as a part of the Constitution when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as the one or the other mode may be proposed by Congress: _Provided_, That no State, without its consent, shall be deprived of its equal vote in the Senate, and that no amendment which may be made prior to the year 1808 shall affect the first and fourth clauses in the ninth section of the first article.

By the second section of the sixth article it is declared that the Constitution, and laws of the United States which shall be made in pursuance thereof, and all treaties made under the authority of the United States, shall be the supreme law of the land, and that the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding. This right in the National Government to execute its powers was indispensable to its existence. If the State governments had not been restrained from encroaching on the powers vested in the National Government, the Constitution, like the Confederation, would soon have been set at naught; and it was not within the limit of the human mind to devise any plan for the accomplishment of the object other than by making a national constitution which should be to the extent of its powers the supreme law of the land. This right in the National Government would have existed under the Constitution to the full extent provided for by this declaration had it not been made. To prevent the possibility of a doubt, however, on so important a subject it was proper to make the declaration.

Having presented above a full view of all the powers granted to the United States, it will be proper to look to those remaining to the States. It is by fixing the great powers which are admitted to belong to each government that we may hope to come to a right conclusion respecting those in controversy between them. In regard to the National Government, this task was easy because its powers were to be found in specific grants in the Constitution; but it is more difficult to give a detail of the powers of the State governments, as their constitutions, containing all powers granted by the people not specifically taken from them by grants to the United States, can not well be enumerated. Fortunately, a precise detail of all the powers remaining to the State governments is not necessary in the present instance. A knowledge of their great powers only will answer every purpose contemplated, and respecting these there can be no diversity in opinion. They are sufficiently recognized and established by the Constitution of the United States itself. In designating the important powers of the State governments it is proper to observe, first, that the territory contemplated by the Constitution belongs to each State in its separate character and not to the United States in their aggregate character. Bach State holds territory according to its original charter, except in cases where cessions have been made to the United States by individual States. The United States had none when the Constitution was adopted which had not been thus ceded to them and which they held on the conditions on which such cession had been made. Within the individual States it is believed that they held not a single acre; but if they did it was as citizens held it, merely as private property. The territory acquired by cession lying without the individual States rests on a different principle, and is provided for by a separate and distinct part of the Constitution. It is the territory within the individual States to which the Constitution in its great principles applies, and it applies to such territory as the territory of a State and not as that of the United States. The next circumstance to be attended to is that the people composing this Union are the people of the several States, and not of the United States in the full sense of a consolidated government. The militia are the militia of the several States; lands are held under the laws of the States; descents, contracts, and all the concerns of private property, the administration of justice, and the whole criminal code, except in the cases of breaches of the laws of the United States made under and in conformity with the powers vested in Congress and of the laws of nations, are regulated by State laws. This enumeration shows the great extent of the powers of the State governments. The territory and the people form the basis on which all governments are founded. The militia constitutes their effective force. The regulation and protection of property and of personal liberty are also among the highest attributes of sovereignty. This, without other evidence, is sufficient to show that the great office of the Constitution of the United States is to unite the States together under a Government endowed with powers adequate to the purposes of its institution, relating, directly or indirectly, to foreign concerns, to the discharge of which a National Government thus formed alone could be competent.

This view of the exclusive jurisdiction of the several States over the territory within their respective limits, except in cases otherwise specially provided for, is supported by the obvious intent of the several powers granted to Congress, to which a more particular attention is now due. Of these the right to declare war is perhaps the most important, as well by the consequences attending war as by the other powers granted in aid of it. The right to lay taxes, duties, imposts, and excises, though necessary for the support of the civil government, is equally necessary to sustain the charges of war; the right to raise and support armies and a navy and to call forth and govern the militia when in the service of the United States are altogether of the latter kind. They are granted in aid of the power to make war and intended to give effect to it. These several powers are of great force and extent, and operate more directly within the limits and upon the resources of the States than any of the other powers. But still they are means only for given ends. War is declared and must be maintained, an army and a navy must be raised, fortifications must be erected for the common defense, debts must be paid, For these purposes duties, imposts, and excises are levied, taxes are laid, the lands, merchandise, and other property of the citizens are liable for them; if the money is not paid, seizures are made and the lands are sold. The transaction is terminated; the lands pass into other hands, who hold them, as the former proprietors did, under the laws of the individual States. They were means only to certain ends; the United States have nothing further to do with them. The same view is applicable to the power of the General Government over persons. The militia is called into the service of the United States; the service is performed; the corps returns to the State to which it belongs; it is the militia of such State, and not of the United States. Soldiers are required for the Army, who may be obtained by voluntary enlistment or by some other process founded in the principles of equality. In either case the citizen after the tour of duty is performed is restored to his former station in society, with his equal share in the common sovereignty of the nation. In all these cases, which are the strongest which can be given, we see that the right of the General Government is nothing more than what it is called in the Constitution, a power to perform certain acts, and that the subject on which it operates is a means only to that end; that it was both before and after that act under the protection and subject to the laws of the individual State within which it was.