which compose those objects, be deduced from the nature of the objects themselves. That this idea was entertained by the framers of the American constitution, is not only to be inferred from the nature of the instrument, but the language. Why else were some of the limitations found in the 9th section of the 1st article, introduced? It is also, in some degree warranted by their having omitted to use any restrictive term, which might prevent its receiving a fair and just interpretation. In considering this question then, we must never forget that it is a constitution we are expounding;" 4 Wh. 407. S. P. 1 Wh. 326.

This great and good judge, never forgot, or disobeyed this injunction: no commentator ever followed the text more faithfully, or ever made a commentary more accordant with its strict intention and language; he never brought into action the powers of his mighty mind, to find some meaning in plain words, of known import, and in common use, that would be above the comprehension of ordinary minds. He knew the framers of the constitution, who were his compatriots; he was the historian of his country; so that, as the expositor of its supreme law, he knew its objects, its intentions; could and did apply to it the rules of interpretation, as the principles of law, then understood, according to the political condition of the people, the states, and the state of the times. Though it is now the fashion of the day, to practically consider his opinions, as less worthy of attention in and out of Court, than is paid to others; the time is not distant, in my opinion, when public opinion will unite, in considering the constitution, and the judicial commentaries upon it, made by this Chief Magistrate, the best evidence of the law of the land. What lord Coke said of the civil law, in his time, may, with great truth, be applied to the constitution, in the present, and the glosses upon it.

"Upon the text of the civil law, there be so many glosses and interpretations, and again, upon these, so many commentaries, and all these written by doctors of equal degree and authority, and therein so many diversities of opinion, as they do rather increase, than resolve doubts and uncertainties; and the professors of that noble science say, That it is like a sea full of waves. The difference, then, between those glosses, and commentaries, and this which we publish, is, that their glosses and commentaries, are written by doctors which he advocates, and so, in a manner, private interpretations. And our expositions, or commentaries upon magna charta, and other statutes, are the resolutions of judges, in Courts of justice, in judicial causes of proceeding; either related and reported in our books, or extant in judicial records, or in both; and therefore, being collected together, shall, (as we conceive,) produce certainty, the mother and nurse of repose and quietness, and are not like to the waves of the sea, but satio benefida peritis, for judicia sunt tanquam jurisdicta." 2 Co. Inst. proeme finis.

What this judge would have said, had he lived in our time and country, and seen the glosses and commentaries which have been

written within the present century here, and in England, upon the constitution and the common law, is not difficult to imagine. His motto was qui patiens qui prudens; his patience and prudence would have been put to a severe trial, if he was compelled to undergo the infliction of listening to these glosses, which, like the waves of the sea, beat upon us in a constant flood, increasing in size with every foreign importation, or home production of books.

That they will not produce that certainty in the law, which is the mother and nurse of quietness and repose, must be well ascertained: that it will be produced by looking into, and adhering to the decision of this Court on constitutional questions, I am well assured; and have therefore referred to them as safe commentaries upon its text. There is another consideration of conclusive weight on my mind. By taking the constitution as the grant of the people of each state; as the depositories of the absolute and unlimited powers of government, in their original sovereignty; their grant conveys the same power which was in the grantor before its execution: of consequence, the powers of the federal government will have a supremacy proportioned to the supremacy of the grantor.

It will bind the states by the sovereign power which they all acknowledge; it will be their own voluntary act, their full and free cession of jurisdiction; so that the more absolute the sovereignty is, which grants the power, the greater will be the strength of the grant, and the security from violation. By adopting the opposite principle, which ascribes the creation of the government to the people in the aggregate, the doctrine of consolidation is necessarily introduced as its foundation; this is so repugnant to the constitution itself, and the universal opinion of the conventions which framed and the people who adopted it, that it will never be acquiesced in. The principle itself is so utterly repugnant to all American ideas of government, that it will be resisted and opposed even in theory; when it is once made the foundation for the action of the government, and referred to as the source of its powers, and we must expect to witness the reality, of what has once threatened its existence. If the states of the Union were sovereign and independent states, before the adoption of the constitution, and the grant of legislative powers by it was not made by the several states who ratified it; then they retain all their preexisting powers, and congress act by an usurped authority. On the theory then of the unity of political power in one people, there will be fastened the antagonist principles of consolidation, and nullification; under the pressure of which the government must fall. On the other hand, if the government is admitted to be the work of the separate people of each state, there can be no pretext for nullification: the sovereign power of the state has made the grant; has declared it the law of the land, supreme in obligation over its own laws and constitution; has commended its judges to obey it; has appointed a tribunal to expound it; and bound itself to abide by changes to be made by alterations or amendments. The people and the states will, like individuals, submit to the privation of those rights which

they have granted to another; but when any claim of property or power, is made under an adversary or paramount right, they will call for the exhibition of the muniments of original title, and its regular deduction to whoever claims its exercise; if not produced, they may and will resist.

No danger can assail the constitution, which will be so difficult to avert, as by the professed friends of its supremacy, renouncing and disclaiming a title perfect in itself, and endeavouring to place it upon a grant by a power which exists only in theory; and from whom no title can be deduced by any visible or tangible act.

THE CONSTITUTION PRESCRIBES THE RULE OF ITS INTERPRETATION. I cannot close this view of the constitution, without again referring to that clause of the instrument, which, connected with its exposition by this Court, I have said is the key to its meaning; it is also the rule prescribed by its framers, whereby to ascertain the extent of the grant of territory or jurisdiction, the rights of soil, the powers of government, as well as the restrictions on the states. congress shall have power to dispose of, and make all needful rules and regulations respecting the territory or other property belonging to the United States;" and nothing in this constitution shall be so construed, as to prejudice any claims of the United States, or of any particular state.

The

It has always seemed to me, that the latter part of this clause is one of the most, if not the most important sentence in the whole instrument; though it has received but little, if any attention. Its words are most comprehensive, extending to the whole constitution, as well as to every subject to which the United States, or any particular state, had any claim; they must not be deemed senseless, but have some meaning and application, which will correspond with the preceding part of the clause; the intention with which they were introduced, and the subject matter of reference. By this clause, a power was given to dispose of, and regulate the territory or other property belonging to the United States, acquired, as has been seen, by cession from the particular states of the Union, or foreign states; and that regulation was but another word for legislation, and the power of creating territorial governments, or corporations. It has been also shown, that this Court have uniformly held, that the right to property and jurisdiction, or legislative power, are concomitant, and vested in the same original proprietor of the soil of a state or territory; and that all the powers of congress, whether exclusive over their own property or territory, or limited over the several states; is of the same nature and character, conferred by the same instrument, as one uniform law throughout the United States. To regulate, implies power over the thing to be regulated, 9 Wh. 209; to prescribe rules, to make laws; it is exclusive over the ceded territories, because the cession of soil carries with it jurisdiction; unless otherwise expressed. It is exclusive within this district, because the states in their cession made it so; it is exclusive, concurrent, or

federal only, over forts, arsenals, &c., according to the terms of the cession by a state, or its consent to the purchase; it is federal over the states, its territory, or the property of its citizens, limited by the constitution to enumerated objects: but in whatever mode, or to whatever extent it is, or can be exercised, the power arises from the cession, by a legislative act, and the constitution. This clause, therefore, of necessity refers to whatever power or property has been in any way granted to the United States by the constitution, or which had been previously, or should thereafter be ceded to them, so that it belonged to them; and the proviso, limitation and prohibition, must have a reference as broad as its subject matter and express terms. It is a declaration, that the claims of the grantee to what is granted, shall not be prejudiced by any construction of any thing contained in the constitution; so that in the language of this Court, the powers of the government shall not be construed and refined down to insignificance. It is also a declaration, that the claims of a grantor to what was ungranted and not prohibited, should remain unprejudiced by any broad construction of the grant, which would take away the reserved powers of the states or the people; the intention of which is apparent, by recurring to the second article of the confederation, in which each state retained "all power, right, and jurisdiction, not expressly delegated to the United States;" and to the ninth, which protected their territory.

On

Such a clause would have defeated the great objects of the constitution, unless all powers intended to be granted had been enumerated in detail; "the minor ingredients," as well as "the great outlines;" which would have made it a prolix code, unintelligible to those for whose regulation it was intended; Vide 4 Wh. 407. the other hand, it would have been almost a hopeless effort, to have effected its adoption without some clause of limitation, by which a rule of interpretation should be laid down as fundamental. We know, as an historical fact, that it was not adopted by all the states, till after the amendments were made, among which the tenth was deemed the most important. No men could better know, or more deeply feel the dangerous effects to the Union, of contests between particular states and the confederacy; the danger of conflicting claims to territory, had been imminent; it was ayerted by cessions, by the states, made in the spirit of compromise. Six years of experience under the confederation, had taught them the necessity of cessions of legislative power, in the same spirit.

During the revolution, the contest was for property, which was settled by the adoption of the articles of confederation, which prohibited the United States from depriving a state of territory for their benefit. It did not require the spirit of prophecy to foresee, that under the constitution, there would be a similar contest for power; and it would have been strange if some endeavour had not been made to avoid it. It was a most delicate effort to so frame a constitution, as to define the precise line by which the granted and reserved powers of government should be so separated, as to avoid any colli

sion; the necessity of the case requires it to be on some point, between a delegation to congress by express words, and such general terms, as by construction might be held to comprehend such as were not granted to them. Perhaps a better term could not have been used, than the one adopted, to avoid both difficulties. "Shall be adjudged," is a parliamentary term of great significancy: a word of command that such a construction shall be given, as in the 12 Cor. 2, prohibiting the king from granting land by any other than the tenure of soccage. His grants must be so taken as to convey such tenure, whatever may be their words; Vide ante, and 3 Ruff, 192: "Shall not be construed," is a term in the 11th amendment, the meaning and effect whereof has been settled by this Court, as before stated; and must receive the same interpretation when it is found in the body of the instrument.

When, therefore, we find a declaration, “ nothing contained in this constitution shall be so construed," &c., it can have no meaning, unless it be to prohibit any interpretation of the grant, by which it shall operate to the prejudice of the grantor, or grantee, by construction merely. Taken in connection with the 10th amendment, such intention is apparent; by reserving what is not granted or prohibited, that which is granted or prohibited, is not reserved; whereby the grant must be interpreted according to the import of its language, without straining it beyond, or within its obvious meaning.

This Court has carried out the rule prescribed by the constitution, according to its spirit and intention. "The powers actually granted must be such as are expressly given, or given by necessary implication." "The instrument is to have a reasonable construction, according to the import of its terms.' "Where a power is given in general terms, it is not to be restrained to particular cases, unless that construction grow out of the context expressly, or by necessary implication;" 1 Wh. 326. Words which import a power should not be restricted by a forced construction; 6 Wh. 423. A similar rule is applied to cessions of property. A term used in connection with, and explained by the other parts of the instrument, so as to show a clear intention, will be considered as a part of, and explanatory of it, to carry the intention into effect. "But if no such conclusion can be drawn, the term must receive its legal and appropriate interpretation;" 10 Pet. 53. "There must be something to take the term out of the strict, legal, and technical interpretation; it must appear, in the instrument, to warrant any other construction; Ib. 54.

These rules are those of the common law. An implication which necessarily results from the words used, is of the same effect as express words; because they equally serve to show the intention of the grantor. Words are but the evidence of intention; their import is their meaning, to be gathered from the context, and their connection with the subject matter. "It is proper to take a view of the liberal meaning of the words to be expounded, of their connection with other words, and the general object to be accomplished by the prohibitory clause, or the grant of power;" 12 Wh. 437.