eous.

the charter which called it into existence; in either case, it is true that the departments of that government cannot either separately or conjointly transcend those limits without affecting the rights and liberties of the States, or of the people: in either case, the construction of the words of the Constitution ought to be the same. The decision of that question was then unnecessary; the court traveled out of the record to decide a point not necessarily growing out. of it; the decision of that point is, therefore, obiter, extra-judicial, and not more binding or obligatory than the opinion of any other six intelligent members of the community. The opinion is erronThe several States did delegate to the Federal Government its powers, and they are parties to the compact. Who gave birth to the Constitution? The history of the times, and the instrument itself furnish the ready answer to the question. The Federal Convention of 1787 was composed of delegates appointed by the respective State legisatures; and who voted by States; the Constitution was submitted on their recommendation, to conventions elected by the people of the several States, that is to say, to the States themselves in their highest political and sovereign authority: by those separate conventions, representing, not the whole mass of the population of the United States, but the people only within the limits of the respective sovereign States, the Constitution was adopted and brought into existence. The individuality of the several States was still kept up when they assembled in convention: their sovereignty was still preserved, and the only effect of the adoption of the Constitution was to take from one set of their agents and servants, to wit: the State governments, a certain portion of specified powers, and to delegate that same portion to another set of servants and agents, then newly-created, namely, the Federal Government. If the powers of the Federal Government are to be viewed as the grant of the people, without regard to the distinctive features of the States, then it would follow that if a majority of the whole sovereign population of the United States had ratified the Constitution, it would immediately have been binding

on the minority, although that minority should consist of every individual in one or more States. But we know that such was not the case. Each State was an independent political society. The Constitution was not binding on any State, even the smallest, without its own free and voluntary consent. Although nineteen-twentieths of the whole people of the United States had approved of and adopted the Constitution, yet it was not a constitution obligatory on Rhode Island, until that small State became a party to it by its own act. The respective States then in their sovereign capacity did delegate to the Federal Government its powers, and in so doing were parties to the compact. The States not only gave birth to the Constitution, but its life depends upon the existence of the State governments. The Senate derives its being from them. The President is elected by persons who are as to numbers partly chosen on the Federal principle. Destroy the State governments, and you, by the same blow, destroy the Senate, and with it the Constitution. Again, how may this Constitution be amended or reformed? By the legislatures of three-fourths of the States, or by conventions of the same number of States in the manner provided for by the Fifth Article. The States then gave birth to the Constitution; they support its existence, and they alone are capable of reforming or changing its form and substance, and yet we are informed by a solemn adjudication that its powers are not derived from that source, and consequently, that they are not parties to it! This doctrine, now solemnly promulgated by the highest judicial tribunal of that government, is not, however, a novelty in our histoy. In the years 1798 and '99, after the Congress of that time had, by the force of implication passed a sedition law, and vested the President with arbitrary and despotic powers over the persons of alien friends, after many political writers, and some of the Federal courts had advocated the absurd and dangerous doctrine that the common law of England made a part of the law of these States, in their united and national capacity, then it was that this doctrine, which denies that the States are parties to the Federal com

pact, was pressed with great zeal and ability. Having attempted to place shackles on the press, the glorious work could not be completed without imposing moral fetters on the independent minds of the several State legislatures. The doctrine, however, was exposed and refuted, and I did not expect that it would be brought forward at this day under the supposed sanction of the highest judicial authority.

The doctrine, if admitted to be true, would be of fatal consequence to the rights and freedom of the people of the States. If the States are not parties to the compact, the legislatures of the several States, who annually bring together the feelings, the wishes, and the opinions of the people within their respective limits, would not have right to canvass the public measures of the Congress, or of the President, nor to remonstrate against the encroachments of power, nor to resist the advances of usurpation, tyranny and oppression. They would no longer be hailed as the sentinels of the public liberty, nor as the protectors of their own rights. Every government, which has ever yet been established, feels a disposition to increase its own powers. Without the restraints which are imposed by an enlightened public opinion, this tendency will inevitably conduct the freest government to the exercise of tyrannized power. If the right of resistance be denied, or taken away, despotism inevitably follows. It has, however, been supposed by some that the Constitution has provided a remedy for every evil: that the right of the State governments to protest against, or to resist encroachments on their authority is taken away, and transferred to the Federal Judiciary, whose power extends to all cases arising under the Constitution; that the Supreme Court is the umpire to decide between the States on the one side, and the United States on the other, in all questions touching the constitutionality of laws, or acts of the Executive. There are many cases which can never be brought before that tribunal, and I do humbly conceive that the States never could have committed an act of such egregious folly as to agree that their umpire should be altogether

appointed and paid by the other party. The Supreme Court may be a perfectly impartial tribunal to decide between two States, but cannot be considered in that point of view when the contest lies between the United States and one of its members.

That I am not singular in the opinion which I entertain upon this subject, is very certain. There have been two judicial decisions in two of the largest States in the Union, which expressly decide that the several States are parties to the Federal compact. I refer to the decision of the Supreme Court of Pennsylvania in the case of the Commonwealth against William Cobbett reported in the Third Volume of Dallas; and to the decision of the Court of Appeals of Virginia in Hunter against Martin, reported in Fourth Munford. But I cannot forbear on this occasion from bringing to my aid a part of the report of a committee of the House of Delegates of Virginia, in the year 1799, in which this subject is enforced with reasoning the most cogent and explained in language the most perspicuous. It will be recollected that in the session of 1798, sundry resolutions had been adopted complaining of sundry acts of usurpation on the part of Congress, and particularly of the alien and sedition laws. Those resolutions having been disapproved of by most of the other State legislatures, became the subject of examination at the succeeding session, and produced that remarkable commentary which has generally been known by the name of Madison's report. The third resolution is as follows:

“That this Assembly doth explicitly and peremptorily declare that it views the powers of the Federal Government, as resulting from the compact, to which the States are parties, as limited by the plain sense and intention of the instrument constituting that compact; and that in case of a deliberate, palpable and dangerous exercise of other powers, not granted by the said compact, the States who are parties thereto, have the right, and they are in duty bound to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them."

"On this resolution, the Committee have bestowed all the attention which its importance merits: they have scanned it not merely with a strict, but severe eye; and they feel confidence in pronouncing, that in its just and fair construction, it is unexceptionably true in its several positions, as well as constitutional and conclusive in its inferences."

"The resolution declares, first, that 'it views the powers of the Federal Government, as resulting from the compact to which the States are parties; in other words, that the Federal powers are derived from the Constitution, and that the Constitution is a compact to which the States are parties.

"Clear as the position must seem, that the Federal powers are derived from the Constitution, and from that alone, the Committee are apprized of a late doctrine which opens another source of Federal powers, not less extensive and important, than it is new and unexpected. The examination of this doctrine will be most conveniently connected with a review of a succeeding resolution. The Committee satisfy themselves here with briefly remarking, that in all the contemporary discussions and comments which the Constitution underwent, it was constantly justified and recommended on the ground, that the powers not given to the government were withheld from it; and that if any doubt could have existed on the subject, under the original text of the Constitution, it is removed, as far as words could remove it, by the Twelfth Amendment, now a part of the Constitution, which expressly 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 other position involved in this branch of the resolution, namely: "that the States are parties to the Constitution or compact" is, in the judgment of the Committee, equally free from objection. It is, indeed, true that the term "States" is sometimes used in a vague sense, and sometimes in different senses, according to the subject to which it is applied. Thus it sometimes means the