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petent to the objects of its creation. It has been said, that congress would have had this power without an express grant, according to the rule of law, that the grant of a thing is a grant of the means necessary for its enjoyment. But however true this may be, as a mere legal proposition, it never was a principle of American government, but a contrary rule applied to the powers delegated by the confederation; it required the invocation of the sovereign power of the people of each state to change it, by making an express grant of a power, which no state would have permitted to be exercised within its limits but by its own consent. I am well aware that this clause has been viewed otherwise by this Court; they have held it to be a grant, by its terms, of the means or the powers necessary and proper to carry the powers of congress into effect, as a collateral rather than a direct power, authorizing the use of instruments or subordinate agents, to effect the objects and purposes of the constitution. Herein they have, in my opinion, departed from their accustomed course: they have applied to this clause a construction which it does not admit, consistently with its terms, and their own settled rules of interpretation.

No

That the power is express, and its objects definitely declared, is plain, " to carry into effect," to pass "such laws as may be necessary and proper," for the executing and enforcing the powers granted by the constitution to the federal government, its departments and officers; and not by that of the states, as under the confederation. That it is the all-important and vital power of the federal government, which must exist in full vigour, and be exercised with firmness, in order to perpetuate its existence, is admitted by all. In my opinion, this power is weakened, by making it by construction, an implied, and not an express power, and extending it to other objects than those of execution; and if it is so extended, there can be no limits assigned to its exercise, than the discretion and judgment of congress, as to the degree of necessity, or propriety, in the given case. power is so dangerous as that which makes necessity its source; for necessity will always be assumed, when a pretext is wanted. When the constitution gives a discretionary power, depending on the necessity of the case or its urgency, it does so in terms; as suspending the writ of habeas corpus; and a state laying duties on imports or exports, or engaging in war: but, this discretion differs, essentially, from that which is confided by the clause under consideration. It is confined to the necessity of making a law, appropriate for the execution of specific powers, over the enumerated subject matters of legislation: whenever a new subject of jurisdiction is introduced, congress act by no legitimate authority. This Court has declared, that confidence in the discretion of the States, was not a principle of the constitution, 6 Wh. 388, &c.; confidence in congress is equally unknown to its provisions, unless in those parts which expressly declare it, in certain cases which are exceptions, applied alike to the federal and state legislatures.

There is another powerful objection to considering this clause in

any other aspect than an express grant of legislative powers of execution. In referring it to the means of execution, by the assumption of jurisdiction over nonenumerated subjects, there necessarily arises a collision of opinions about the degree of necessity for using such means, which no reasoning can settle; it is but opinion, the correctness of which can be tested by no fixed or determinate standard of authority. Those who think a power necessary, will exercise it; those who think otherwise, will oppose it: hence we find that from the time of the adoption of the constitution, this clause has been, and yet continues to be, the debateable ground of contending parties, and remains as unsettled in public opinion, as the preamble to the constitution. One gives it such a construction as will enlarge, the other construes it so as to contract, the powers of the government to the utmost possible extent to which plain language can be perverted, by refined, ingenious, and powerful minds, reasoning under the influence of political opinion, each overlooking the declared import, and necessary implication of the words.

It cannot be doubted that these contests for power were foreseen by the framers of the constitution, and I have always been satisfied, that they intended to guard against both constructions; so as alike to prevent the powers of congress from being frittered down to inefficiency for the objects of the grant, or the reserved powers of the several states from being usurped-by construction. No clause could be more appropriate to the purpose, and none could more clearly express the intention, than that "nothing in this constitution shall be so construed." I do not feel at liberty to expunge one word from it, or to give it a more narrow application than it imports; it embraces every thing in the constitution, whether by way of grant or restriction, and prescribes for the interpretation of all its provisions, the only rule by which its true meaning can be ascertained, and the movements of the state and federal systems be preserved in harmony as one great whole. It ought, in my judgment, to receive the most liberal and benign interpretation which the words admit of; and if so taken, will effectuate the most salutary result" certainty, the mother and nurse of the repose and quietness" of the Union.

These are my general views of the constitution, extracted from those sources of political and judicial authority which have been followed as safe guides; for their prolixity or tediousness, I have no apology to offer to the profession, other than my sense of the necessity of resorting at large to some better mode of expounding the constitution than has been hitherto pursued. It was necessary to explain my own peculiar opinion, on the cases depending and decided at the last term, as well as in some previous ones, wherein I have hitherto differed from the other judges; for which position, it was proper that my reasons should be understood by those who should desire to know them. Having now done this, I have only to show, that in combatting propositions and theories which I considered as unsound as dangerous, as repugnant to the provisions of the constitution, as the judicial exposition of its great principles, and the definition of its terms, I have not made them from fancy; and in such form as to enable me to put them down.

In the following extracts will be found the antagonist propositions to those which I have endeavoured to establish. The exalted character and stations of the eminent persons who have given their expositions of the constitution, entitle them to the most grave consideration and profound respect; and forbid the imputation of an intention to refer to names, and not to things. The following extracts from an able and learned commentary on the constitution, published in 1833, thus defines a state constitution:

"It is a fundamental law, prescribed by the will of a majority of the people of the states, (who are entitled to prescribe it,) for the government and regulation of the whole people. It binds them as a supreme compact, ordained by the sovereign power; and not merely as a voluntary contract," &c.; 1 Story Com. 317, 18; sec. 349.

He thus defines the constitution of the United States. "It is not a compact; on the contrary, the preamble emphatically speaks of it as a solemn ordinance and establishment of government. The language is, We, the people of the United States, do ordain and establish this constitution for the United States of America.' The people do ordain and establish, (not contract,) and stipulate with each other. The people of the United States, not the distinct people of a particular state, with the people of the other states. The people ordain and establish a constitution, not a confederation;" Ib. 319; sec. 352. "It was, nevertheless, in the solemn instruments of ratification by the people of the several states, assented to as a constitution;" Ib. 323; sec. 356. "But that it is, as the people have named and called it truly, a constitution; and they properly said, We, the people, &c. do ordain, &c. and not we the people of each state;" Ib. 327; sec. 360.

"The doctrine then that the states are parties, is a gratuitous assumption. In the language of a most distinguished statesman, the constitution itself, in its very front, refutes that. It declares that it is ordained and established by the people of the United States. So far from saying that it is established by the governments of the several states, it does not even say that it is established by the people of the several states; but it pronounces, that it is established by the people of the United States, in the aggregate. Doubtless the people of the several states, taken collectively, constitute the people of the United States. But it is in this, their collective capacity; it is as all the people of the United States, that they establish the constitution;" Ib. 332, 333; sec. 363. These propositions are laid down in terms so explicit, as to be susceptible of no misunderstanding as to their meaning; it is, therefore, unnecessary to pursue the remarks of the author any further, in order to develope his ideas as to the origin of the present governments.

The learned commentator thus notices and defines the origin and nature of the two governments which preceded the present, as the correct conclusions drawn from the political history of the country, from the assembling of the first congress of the revolution, till the adoption of the articles of confederation, and thence till the adoption of the constitution.

"The congress of delegates (calling themselves in their more formal acts, the delegates appointed by the good people of these colonies), assembled on the 4th of September, 1774, and having chosen officers, they adopted certain fundamental rules for their proceedings. Thus was organized, under the auspices, and with consent of the people, acting directly in their primary sovereign capacity, and without the intervention of the functionaries to whom the ordinary powers of government were delegated in the colonies, the first general or national government; which has been very aptly called the revolutionary government, since, in its origin and progress it was conducted upon revolutionary principles. The congress thus assembled, exercised de facto, and de jure, a sovereign authority; not as the delegated agents of the governments, de facto, of the colonies, but in virtue of original powers derived from the people. The revolutionary government thus formed, terminated only when it was regularly superseded, by the confederated government, under the articles finally ratified, as we shall hereafter see in 1781;" 1 Story's Com. 185, 6, sec. 200,

201.

"In the first place, antecedent to the declaration of independence, none of the colonies were, or pretended to be, sovereign states, in the sense in which the term sovereign is sometimes applied to states;" Ib. 191, sec. 207. "Strictly speaking, in our republican forms of government, the absolute sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each state, not granted to any of the public functionaries, is in the people of the state;" Ib. 195, sec. 208. "Now, it is apparent, that none of the colonies before the revolution, were in the most enlarged and general sense, independent or sovereign communities;" Ib. 196, sec. 210.

"In the next place, the colonies did not severally act for themselves, and proclaim their independence;" Ib. 197.

"But the declaration of independence of all the colonies, was the united act of all; it was a declaration by the representatives of the United States of America, in congress assembled, by the delegates appointed by the good people of the colonies, as in a prior declaration of rights they were called. It was not an act done by the state governments then organized, nor by persons chosen by them. It was emphatically, the act of the whole people of the United States, by the instrumentality of their representatives, chosen for that among other purposes. It was an act not competent to the state governments, or any of them, as organized under their charters, to adopt. Those charters neither contemplated the case, or provided for it. It was an act of original inherent sovereignty by the people themselves; resulting from their right to change the form of government, and to institute a new government whenever necessary for their safety and happiness. So the declaration of independence treats it. No state had presumed, of itself, to form a new government, or

to provide for the exigency of the times, without consulting congress on the subject; and when they acted, it was in pursuance of the recommendation of congress. It was therefore the achievement of the whole, for the benefit of the whole. The people of the united colonies made the united colonies free and independent states; and absolved them from all allegiance to the British crown. The declaration of independence has, accordingly, always been treated as an act of paramount and sovereign authority, complete and perfect, per se; and ipso facto, making an entire dissolution of all political connection with, and allegiance to Great Britain. And this not merely as a practical fact, but in a legal and constitutional view of the matter by courts of justice;" Ib. 199, sec. 211.

"The same body, in 1776, took bolder steps, and executed powers which can, in no other manner, be justified or accounted for, than upon the supposition, that a national union, for national purposes, already existed, and that the congress was invested with sovereign power over all the colonies, for the purpose of preserving the common rights and liberties of all."

"Whatever, then, may be the theories of ingenious men on the subject, it is historically true, that before the declaration of independence, these colonies were not in any absolute sense sovereign states; that that event did not find or make them such: but that at the moment of their separation, they were under the dominion of a superior controlling national government, whose powers were vested in and exercised by the general congress, with the consent of the people of all the states; Ib. 202, sec. 214.

"From the moment of the declaration of independence, if not for most purposes at an antecedent period, the united colonies must be considered as being a nation de facto, having a general government over it, created and acting by the general consent of the people of all the colonies. The powers of that government were not, and could not be well defined; but still its exclusive sovereignty in many cases was firmly established; and its controlling power over the states, was in most, if not in all, national measures, universally admitted;" Ib. 203, sec. 215.

It is unnecessary to follow the learned author through his history of the confederation, or his views of the nature of the government which existed under it; as he has copied into his work, from a most interesting state paper; "some of its important passages, as among the ablest commentaries ever offered upon the constitution;" Vide 2 Story's Com. 543.

" In our colonial state, although dependent on another power, we very early considered ourselves connected by common interest with each other. Leagues were formed for common defence; and before the declaration of independence, we were known in our aggregate character as the United Colonies of America. That decisive and important step was taken jointly. We declared ourselves a nation, by a joint, not by several acts; and when the terms of our confederation were reduced to form, it was in that of a solemn league of

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