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served as a gratification to the laudable curiosity felt by every people to trace the origin and progress of their political Institutions, & as a source perhaps of some lights on the Science of Govt. the legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the Authority which it possesses.1

I must say that the real measure of the powers meant to be granted to Congress by the Convention, as I understood and believe, is to be sought in the specifications, to be expounded indeed not with the strictness applied to an ordinary statute by a Court of Law; nor on the other hand with a latitude that under the name of means for carrying into execution a limited Government, would transform it into a Government without limits.2

And finally, in speaking of the difference of opinion between Colonel Hamilton, on the one side, and himself, on the other, Mr. Madison said, as reported by Mr. N. P. Trist in his Memoranda, under date of September 27, 1834, but two years before Mr. Madison's death:

In a word, the divergence between us took place-from his wishing to administration, or rather to administer the Government (these were Mr. M.'s very words), into what he thought it ought to be; while, on my part, I endeavored to make it conform to the Constitution as understood by the Convention that produced and recommended it, and particularly by the State conventions that adopted it.3

Perhaps the difficulties of forming the more perfect Union under the Constitution and of the influence which it was foreseen it might have upon the society of nations have never been better stated than by the two great members of the Convention, whose presence alone would have rendered that conference of the States illustrious. Thus, George Washington said in a letter dated November 16, 1787, addressed to Mrs. Macaulay Graham:

The various and opposite interests which were to be conciliated, the local prejudices which were to be subdued, the diversity of opinions and sentiments which were to be reconciled, and, in fine, the sacrifices which were necessary to be made on all sides for the general welfare, combined to make it a work of so intricate and difficult a nature, that I think it is much to be wondered at, that any thing could have been produced with such unanimity as the constitution proposed.*

Thus Benjamin Franklin wrote in a letter to Mr. Grand dated October 22, 1787:

'James Madison to Thomas Ritchie, September 15, 1821. Writings of Madison, Vol. ix, pp. 71-2, note.

2

James Madison to M. L. Hurlbert, May, 1830. Ibid., pp. 371-2.

H. S. Randall, Life of Thomas Jefferson, Vol. iii, p. 595.

4

Sparks, The Writings of Washington, Vol. ix, p. 283.

If it succeeds, I do not see why you might not in Europe carry the Project of good Henry the 4th into Execution, by forming a Federal Union and One Grand Republick of all its different States & Kingdoms, by means of a like Convention, for we had many Interests to reconcile.1

In an address on the United States Supreme Court and the sovereignty of the people, delivered in 1890, the late Mr. Edward John Phelps, a distinguished lawyer of the United States, its Minister Plenipotentiary and Envoy Extraordinary to Great Britain and leading counsel before the Behring Sea Commission of 1893, finely said: "American experience has made it an axiom in political science that no written constitution of government can hope to stand without a paramount and independent tribunal to determine its construction and to enforce its precepts in the last resort. This is the great and foremost duty cast by the Constitution, for the sake of the Constitution, upon the Supreme Court of the United States."

2

The construction placed by the States of the Union upon the Constitution would seem to indicate to the unprejudiced mind that at that time they regarded themselves as States, not provinces, entering into union, granting all powers to the Union of their creation which it could exercise, and reserving to themselves the exercise of powers which they had not directly granted or which they had not granted by necessary implication, or whose exercise by themselves they had not renounced in the common good. The Supreme Court of the United States, which is the "paramount and independent tribunal," to quote Mr. Phelps' language, "to determine its construction," has repeatedly, in the hundred years and more following the institution of the Government under the Constitution, been called upon to interpret that charter of government in cases presented to it and properly involving its provisions, and it has, from its first to its last decision, spoken the uniform language of statesman and of jurist, irrespective of section or party. Thus, Mr. Justice Iredell said, in his dissenting opinion in the case of Chisholm The v. Georgia, (2 Dallas, 419, 435), decided in 1793, an opinion approved by of the the 11th amendment to the Constitution of the United States:

Every State in the Union, in every instance where its sovereignty has not been delegated to the United States, I consider to be as compleatly sovereign, as the United States are in respect to the powers surrendered. The United States are sovereign as to all the powers of Government actually surrendered: Each State in the Union is sovereign as to all the powers reserved. It must necessarily be so, because the United States have no claim to any authority but such as the States have surrendered to them: Of course the part not surrendered must remain as it did before.

A. H. Smyth, The Writings of Benjamin Franklin, Vol. ix, p. 619.

Sovereignty
States

2

Phelps, Orations and Essays, pp. 58-9.

The Division of Sovereign

Powers

To the same effect, Mr. Justice Story said, in delivering the opinion of the Supreme Court in Martin v. Hunter (1 Wheaton, 304, 325-6), decided in 1816:

On the other hand, it is perfectly clear that the sovereign powers vested in the state governments, by their respective constitutions, remained unaltered and unimpaired, except so far as they were granted to the government of the United States.

These deductions do not rest upon general reasoning, plain and obvious as they seem to be. They have been positively recognised by one of the articles in amendment of the constitution, which declares, that "the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

The government, then, of the United States can claim no powers which are not granted to it by the constitution, and the powers actually granted, must be such as are expressly given, or given by necessary implication.

The great Chief Justice of the United States, John Marshall, said, in delivering the unanimous opinion of his brethren of the court in McCulloch v. Maryland (4 Wheaton, 316, 403, 410), decided in 1819:

No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. . .

In America, the powers of sovereignty are divided between the government of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other.

In a very much later case, when the Civil War might have seemed to the partisan to have changed the relation of the States to the Union and of the Union to the States, Mr. Chief Justice Chase said, in delivering the opinion of the court in Texas v. White (7 Wallace, 700, 725), decided in 1868, and involving this very relationship:

Under the Articles of Confederation each State retained its sovereignty, freedom, and independence, and every power, jurisdiction, and right not expressly delegated to the United States. Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people. And we have already had occasion to remark at this term, that "the people of each State compose a State, having its own government, and endowed with all the functions essential to separate and independent existence," and that "without the States in union, there could be no such political body as the United States." Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the Na

tional Government. The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.

Two years later, in a case involving an act of Congress in excess of the Constitutional grant of power, affecting an official of one of the States of the Union, and therefore the State, Mr. Justice Nelson, speaking for the court, said, in Collector v. Day (11 Wallace, 113, 124), decided in 1870:

The general government, and the States, although both exist within the same territorial limits, are separate and distinct sovereignties, acting separately and independently of each other, within their respective spheres. The former in its appropriate sphere is supreme; but the States within the limits of their powers not granted, or, in the language of the tenth amendment, "reserved," are as independent of the general government as that government within its sphere is independent of the States.

And finally, Mr. Justice Brewer said more recently, in delivering the opinion of the court in South Carolina v. United States (199 U. S., 437, 448), decided in 1905:

We have in this Republic a dual system of government, National and state, each operating within the same territory and upon the same persons; and yet working without collision, because their functions are different. There are certain matters over which the National Government has absolute control and no action of the State can interfere therewith, and there are others in which the State is supreme, and in respect to them the National Government is powerless. To preserve the even balance between these two governments and hold each in its separate sphere is the peculiar duty of all courts, preeminently of this-a duty oftentimes of great delicacy and difficulty.

It is believed that the views of accredited publicists, and decisions of the Supreme Court, have been but as a gloss upon the views of Mr. Madison, expressed in a letter to Robert Y. Hayne, United States Senator from South Carolina, taking issue with the theory of the Constitution propounded by that gentleman.

In the draft of this admirable letter dated April 3/4, 1830, Mr. Madison, who would doubtless be called the Father of the Constitution if his modesty had not forbidden it,' who was, in any event, the best informed delegate in the Convention, and who afterward became a member of the Congress, Secretary of State, and President of the United States under the Constitution,

wrote:

It appears to me that in deciding on the character of the Constitution of the U. S. it is not sufficiently kept in view that being an unprecedented

"Your letter of the 18th Ult. was duly received. You give me a credit to which I have no claim, in calling me the writer of the Constitution of the U. S.' This was not, like the fabled Goddess of Wisdom, the offspring of a single brain. It ought to be regarded as the work of many heads & many hands." Extract from letter of James Madison to William Cogswell, March 10, 1834, from the Madison MSS. in the Library of Congress. See also, The Writings of James Madison, Hunt, Editor, Vol. IX (1910), pp. 533-534.

modification of the powers of Govt. it must not be looked at thro' the refracting medium either of a consolidated Government, or of a confederated Govt; that being essentially different from both, it must be its own interpreter according to its text and the facts of the case.

Its characteristic peculiarities are 1. the mode of its formation. 2. its division of the supreme powers of Govt. between the States in their united capacity, and the States in their individual capacities.

1. It was formed not by the Governments of the States as the Federal Government superseded by it was formed; nor by a majority of the people of the U. S. as a single Community, in the manner of a consolidated Gov

ernment.

It was formed by the States, that is by the people of each State, acting in their highest sovereign capacity thro' Conventions representing them in that capacity, in like manner and by the same authority as the State Constitutions were formed; with this characteristic & essential difference that the Constitution of the U. S. being a compact among the States that is the people thereof making them the parties to the compact over one people for specified objects can not be revoked or changed at the will of any State within its limits as the Constitution of a State may be changed at the will of the State, that is the people who compose the State & are the parties to its constitution & retained their powers over it. The idea of a compact between the Governors & the Governed was exploded with the Royal doctrine that Government was held by some tenure independent of the people.

The Constitution of the U. S. is therefore within its prescribed sphere a Constitution in as strict a sense of the term as are the Constitutions of the individual States, within their respective spheres.

2. And that it divides the supreme powers of Govt between the two Governments is seen on the face of it; the powers of war & taxation, that is of the sword & the purse, of commerce of treaties &c. vested in the Gov! of the U. S. being of as high a character as any of the powers reserved to the State Govts

If we advert to the Govt of the U. S. as created by the Constitution it is found also to be a Govt in as strict a sense of the term, within the sphere of its powers, as the Govts created by the Constitutions of the States are within their respective spheres. It is like them organized into a Legislative, Executive & Judicial Dep! It has, like them, acknowledged cases in which the powers of those Departments are to operate and the operation is to be the same in both; that is directly on the persons & things submitted to their power. The concurrent operation in certain cases is one of the features constituting the peculiarity of the system.

Between these two Constitutional Govts, the one operating in all the States, the others operating in each respectively; with the aggregate powers of Govt divided between them, it could not escape attention, that controversies concerning the boundary of Jurisdiction would arise, and that without some adequate provision for deciding them, conflicts of physical force might ensue. A political system that does not provide for a peaceable & authoritative termination of occurring controversies, can be but the name & shadow of a Gov! the very object and end of a real Govt being the substitution of law & order for uncertainty confusion & violence.

That a final decision of such controversies, if left to each of 13 State now 24 with a prospective increase, would make the Constitution & laws of the U. S. different in different States, was obvious; and equally obvious that

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