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this same mask, taxes, partial and oppressive, can be imposed on certain portions of the country, taxes, which though fair and uniform in their appearance, are known to be sectional in their operation-if roads and canals can be extended at pleasure, the soil occupied by compulsion or purchase--if “exclusive jurisdiction" is no longer to be confined to districts and places ceded by particular States, “or purchased by the consent of the Legislatures for the erection of forts, magazines, arsenals, dockyards, and other needful buildings," as specially set forth in the Constitution, but may be established in every place that the Federal Government may designate—if these powers can all be implied and exercised under a pretext of regulating commerce or providing for the common defence, or as appertaining
national benefit and general welfare, it may well be asked, but cannot be answered, what powers, rights or jurisdiction can, with any certainty, remain to the individual States ? Even the poor privilege of remonstrance in their aggregate capacity is now denied. Though the interests that have conjured up much of this mighty all-pervading power are sectional, yet it is boldly contended that the counteracting power must not be sectional, that the Legislatures of the States where the oppression is felt, and to whom the people have committed the guardianship of their rights, are bound to acquiesce silently, and leave the remedy in the people at large, where, in a diffusive and unconnected state, all political responsibility is resolved. In England there exists not a local nor municipal corporation that possesses not more power than some are now disposed to accord to the States. This is a point that requires some examination, and to an inquiry as to the reserved power and sovereignty of the States, we shall confine ourselves in the sequel of this paper.
In the course of the celebrated opinion in the case of M'Culloch vs. the State of Maryland, the following remarks were made by the Court :
“In discussing this question, the counsel for the State of Maryland have deemed it of some importance, in the construction of the Constitution, to consider that instrument, not as emanating from the people, but as the act of sovereign and independent States. The powers of the General Government, it has been said, are delegated by the States, who alone are truly sovereign; and must be exercised in subordination to the States, who alone possess supreme
dominion. “ It would be difficult to sustain this proposition. The Convention which framed the Constitution was indeed elected by the State Legislatures. But the instrument when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing Congress of the United States, with a request that
it might “ be suhmitted to a convention of delegates, chosen in each State by the people thereof, under the recommendation of its Legislature, for their assent and ratification.” This mode of proceeding was adopted; and by the Convention, by Congress, and by the State Legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively, and wisely on such a subject, by assembling in Convention. It is true they assembled in their several States and where else should they have as. sembled ? 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. But the measures they adopt, do not, on that account, cease to be the measures of the people themselves, or become the measures of the State Governments.
“ From these conventions the Constitution derives its whole authority. The government proceeds directly from the people; is ‘ordained and established' in the name of the people; and is declared to be ordained ' in order to form a more perfect union, establish justice, ensure domestic tranquillity, and secure the blessings of liberty to themselves and to their posterity. The assent of the States, in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. IT REQUIRED NOT THE AFFIRMANCE, AND COULD NOT BE NEGATIVED BY THE STATE GOVERNMENTS. The Constitution when thus adopted, was of complete obligation, and bound the State sovereignties."
'This opinion we shall now examine, and inquire particularly into the accuracy of the doctrine, “that the Constitution required not the affirmance, and could not have been negatived by the State Governments.”
It will not be denied that all legitimate power that can emanate from any settled and established government, must be derived from the regular government as organized by the people; and no powers to establish any new, or to control the old gorernment, can be given by the people without a revolution or subversion of the old government. Or, in other words, the only legal acts of any free people possessing a constitutional government, are those proceeding from the regular organized powers of such government. Every people has the right of revolution whenever the majı rity think fit; the people being the source of all power, and so far as respects the distribution of power, the sovereign or supreme arbiter, as they can give and take away, at the pleasure of the majority. It is somewhat curious that the earliest claim to this right of the people, in modern times, was commenced and most strenuously urged by the Jesuits. It
was intended as an instrument in their hands, against refractory kings.*
Every people has the right of revolution, that is, of overturning an existing government, but it must be a revolution, or the old government will still represent the sovereignty, and alone can exercise sovereign powers, consistently with the Constitution, which, until it is subverted, is the supreme law of the land, controlling even those who formed it, as in case of any other contract or agreement among men.
A freeman has the com nand of his own conduct, but surely he may bind himself with others to do or to forbear many things, with a stipulation that the contract may, at any time, be altered with the consent of any specified proportion of contractors. Now, if there be no
• " 'Tis John Mariana,” said Sir Thomas Craig, of Riccartoun, who has been modestly called the · Justinianus Scotus,' 'tis John Mariana, the latest writer of the Spanish history, who, in that speech which he falsely attributes to Francis Da. valo, (De rebus Hispan. lib. xix. c. 15) makes use of these words :— The nature of the royal dignity is a sufficient proof that kingdoms may be changed by the consent of the nation, and new kings appointed, because taking their rise from the pleasure of the multitude, according to the exigency of affairs, they may be transferred to others. Neither was another originally substituted into the place of the deceased king, by any hereditary right, but by the will of the people, and he who was to command them all, was chosen by all. It was from the excessive power of kings, that children, not only of corrupt manners but also of a tender age, have succeeded to their parents, and that which ought to be the reward of virtue, is obtained (says he) without any merit.'” It was in 1603 that Craig wrote (we quote trom his dedication to the king of his book “On Succession")—he was horror-struck at this language of the Jesuit. By these torches," he continues, (to wit, the plausible reasoning of such discourses) both the Jesuits (Doleman and Mariana) endeavour to inflame the minds of the common people, and to put them upon making indovations in the State. But as the same Mariana says. "Qui sanari non possunt, ferro exscindendi.' Nor can any tbing secure the safety of civil societies against that kind of men but a timely severity; neither shall any government be in peace, in which they are suffered to intermeddle, for they are the most certain pests of all kingdoms and states. As for myself, I have endeavoured as I could, and according to my poor abilities, in this small work, (a folio of about ten pounds avoirdupois) to detect their impieties and impostures.” We believe there can be but little doubt, that the Jesuits were among the first in Europe to broach this doctrine and maintain a principle which is now the basis of all free government. The right even of a private citizen to put to death a tyrant, ruling by usurpation, is plainly and fully avowed by Suarez, (Lib. vi. c. 4, Num. 13) and by Mariana, (De Rege et Regis institutione, lib. i. c. 6.) All the passages of this kind are collected and urged against the Jesuits in the book entitled Les Jesuites Criminels de Leze Majeste,” (3d edit. 8vo. Hague, 1759.)
How different was the opinion of that great scholar and republican, Buchanan, from this “ Justinianus Scotus."
B. Uter auctoritatem habet ab altero-Rex ne a lege an Lex a rege?
M. Quia non Rex legi, sed lex Regi coercendo quæsita est. Et a lege id ipsum habet quod Rex est; nam absque eâ Tyrannus est.
B. Lex igitur Rege potentior est ac velut rectrix et moderatrix.
[Buchanan de jure regni apud Scotos.
power to compel performance, the majority, having the physical power, may refuse further performance, and set up another contract. This, in goverment, would be a revolution. Until, however, such revolution does take place, and as long as a pretence remains that the contracting parties intend to perform their existing obligations, all of their acts must be construed with an honest regard to the intention and obvious construction of the contract. And where a party professes to act under such agreement, his conduct and transactions must be construed by its intentions, and must be controlled and restricted by its provisions. This is too evident for further reasoning. In the case of a government, under a constitution, the people constitute those, who are appointed to execute the powers conferred, their high commissioners, and until the commission is revoked, the people cannot legally disagree to their constitutional acts. Nor can individuals act in contravention to such government, until the majority choose to have a revolution, and establish and settle a new government.
A revolution is the forcible subversion of an existing government against the will of the persons governing, and the establishment of a new one. This brings us to the question, how was the present Constitution of the United States formed? Was it by the authority of the legally authorized government of the States then existing, or was there a revolution ? Was it set up by the people by a subversion and abandonment of their former government? To determine whether there was a revolution or not, let us inquire if any government was subverted in the formation of this Constitution, or whether its adoption was not a legal act, under the authority of the government or governments which then existed, and even now exist, and whether it be not a constitutional amendment of the pre-existent government and nothing more.
We have already stated what we consider a revolution. We know no other meaning attached to the ierm. By the thirteenth article of the Confederation of 1778, it was agreed by the States that
“ The articles of this Confederation shall be inviolably observed by every State; and the Union shall be perpetual; nor shall
any alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the Legislature of every State. And whereas, it hath pleased the great governor of the world to incline the hearts of the Legislatures we respectively represent in Congress to approve of, and to authorize us to ratify the said articles of confederation, know ye, that we, the undersigned delegates, by virtue of the power and authority to
us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, (that is, the legislatures represented] fully and entirely ratify and confirm each and every of the said articles of confederation and perpetual union, and all and singular, the matters and things therein contained. And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, in all questions which by the said confederation are submitted to them; and that the articles thereof shall be inviolably observed by the States we respectively represent, and that the union shall be perpetual.”
Here then was a union or perpetual confederation guaranteed by the Constitution to the different States, which clearly rebuts any indistinct idea of indivisibility or consolidation, which some modern politicians may attach to the word union. It can have no other meaning in our constitution, history and transactions than the word confederation ; and whatever subsequent constitutional modifications may have been given to the union, it is still a confederation of States, otherwise those modifications are in violation of that compact and void ; or there has been a revolution and an entirely new government founded upon the wreck of that which pre-existed. This, we presume, cannot be pretended by any one, as it is surely and entirely contradicted by the whole constitutional history of this country, and especially by the events which led to the formation of the present Constitution, or rather amended confederation.
The first public recommendation of a general Convention of all the States for the purpose of amending the Confederation, was made by a partial convention of delegates from the States of Virginia, Maryland, Delaware, Pennsylvania, New-Jersey, and New-York, at Annapolis, in consequence of which, as early as the 16th of October, 1786, an act was passed by the General Assembly of Virginia, beginning in these words :
Whereas, the commissioners who assembled at Annapolis on the 14th day of September last, for the purpose of devising and reporting the means of enabling Congress to provide effectually for the commercial interest of the United States, have represented the necessity of extending the revision of the federal system to all its defects, and have recommended that deputies for that purpose be appointed by the several Legislatures, to meet in convention, at Philadelphia, on the second day of May next, a provision, which was preferable to a discussion of the subject in Congress, where it might be too much interrupted by the ordinary business before them, and where it would besides be deprived of the valuable counsels of sundry individuals, who are disqualified by the Constitution or laws of the particular States, or restrained by peculiar circumstance from a seat in that assembly.” And by this same act Commissioners were appointed for that purpose. --Jour. Conv. p. 56.