This was one main point directly made in Fletcher v. Peck, on which this Court decided that the title to the land was in Georgia; that she had a right to grant it; and that the grant was valid, to pass a title in fee simple to the purchasers; 6 Cr. 142. The United States acquiesced in that decision, by making a compromise with the purchasers, and paying them a certain sum.

In Harcourt v. Gaillard, the same question came up, and was decided in favour of Georgia, as has been shown before; vide 12 Wh. 524, &c. Herein will be found another strong illustration of the accordance of the opinions of this Court, with the great acts of the revolution. Their judgment is founded on the declaration of independence, the treaties of the states with foreign powers, and the treaty of peace. The guarantee of the states with each other, by the third article of confederation, and by France to each, was of their possessions, as well as in matters of government; the guarantee to the confederacy was only of such conquests or acquisitions, as should be made from Great Britain, without the boundaries of the particular states; "the whole, as their possession, shall be fixed and assured to the said states, at the moment of the cessation of their present war with England;" 1 Laws, 98, 9. Now, as no conquests were made by the confederacy, and the possessions of the several states were fixed by the treaty of peace, according to their original boundaries, the confederacy could acquire no territory as possessions, or jurisdiction in matters of government; and this Court have declared, in four solemn decisions, that they did not; 4 Cr. 212; 6 Cr. 142; 12 Wh. 524; Ib. 534.

Taking, it therefore, as a political, or judicial question, it has long since been put at rest; not only by the authority of the constitution, and all the departments of the government; but in public opinion. It may then be assumed as an unquestioned proposition, that the United States can have no right of soil within any of the states of this Union, unless by a cession from the particular states, or a foreign state, who was the original, absolute, proprietary thereof; from this proposition another equally unquestionable one necessarily results.

THE RIGHTS OF SOIL AND JURISDICTION, ARE CONCOMITANT AND INSEPARABLE, UNLESS BY THE STATE IN WHOM BOTH WERE

VESTED.

It is not deemed necessary to enter into any course of reasoning, or any reference to authority, to prove that the state which is the absolute owner of the territory within its boundaries, has the absolute power of government over it; or that if the legislative jurisdiction was by original right in a paramount power, that the right of soil was in the same power. If these propositions are true, a third is self-evident; that if the right of soil or jurisdiction, is legitimately exercised by any other than such paramount power, it must be by its grant or authority, otherwise it must be void as an usurpation. Grants of land or power, must then derive their validity from the same sovereign, who alone can separate the one right from the other;

and his grant must testify what he has granted, and to whom: the separation is not to be made by theory, assertion, or construction. If the existing condition of the country is such, that the right of soil is in a single state in full propriety, and the dominion over it is absolute or qualifiedly in the United States; the original sovereign was the people of the state, or the people of all the states, as one "single sovereign power." I have traced the right to property and power to the people of each state, and deduced the title to both from them to the United States, by their deeds of cession, and constitution of government; let those who assert that the right was not in each state, show how the rights of the crown devolved on the one people, and how they have made their grant of territory, or the powers of government over the several states. On the first organization of the federal government in 1789, there were only eleven states within the Union; yet the constitution was then ordained and established by "We, the people of the United States." If they were the whole people in the aggregate, in their unity of power, the congress of that day evinced their most profound ignorance of the origin and nature of the government they were administering. As North Carolina and Rhode Island had not ratified the constitution, the revenue laws put those states on the same footing as foreign states, kingdoms, or countries; 1 Story, L. U. S. 30, 50. No provision was made for the operation of the judiciary act of 1789: vide 1 Story, 53, &c.: and if the three branches of the legislative power were not demented, these two states were no more constituent parts of the American empire at that time, than Canada and Nova Scotia.

The whole Congress were demented, if the same paramount power, which made the constitution the supreme law of the land in the eleven states, had not the same power over those two states, to force them into the Union, and make them subject to its laws; without any act of a convention of the people thereof.

Should this be deemed by theorists a proposition too bold to advance, they must give some good reasons to show why the constitution and laws have now any more force in those states, than in 1789; unless it has been by the ratification of the people, in a capacity wholly separate and distinct from the people of the other states, who having previously done the same act, were functi officio; and could not act jointly with them. For myself, I am utterly unable to imagine any middle position to be assumed, by which to account how North Carolina and Rhode Island, are now constituent parts of the United States: that they became so by the consent of each, as the other states did, is to me an intelligible proposition; but how it has been, or could otherwise be done, is incomprehensible to a mind not accustomed to search for mysteries in plain words.

THE PREAMBLE OF THE CONSTITUTION IS PROSPECTIVE, REFERRING TO THE PEOPLE OF THOSE STATES WHICH SHOULD RATIFY IT FROM I

TIME TO TIME.

I have only to add one other consideration, to illustrate the meaning of the preamble. All agree that the constitution was to be established by the people of the United States, whenever the conventions of nine states should ratify it; all must agree, that when it was proposed for adoption in 1787, it could not be foreseen which of the states would so ratify it; the states therefore could not be named till their separate ratifications were given. It provided for the admission of new states, but no one could divine their names or locality; states could be "formed by the junction of two or more states," but none could say of which. The constitution was intended for posterity, through all time; and for "the land," the whole territory, and all the states, old and new; as one law, speaking in the same words, and with the same intention, at the time it was proposed, and at each period when any state ratified it, and thus became one of "the United States of America," by the act of the people of the states respectively.

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When the terms "we, the people," "of the United States," are thus applied, they seem to me not only appropriate to the instrument, but the only terms that would be so; it uses terms in all its parts, yet we find no definitions or explanations; it was not intended for a code; and the term "people," was a mere designation of the power by which the constitution was made, as the states" were designated by their separate ratifications. Hence it referred, in 1789, to eleven only, then to the old thirteen states, and now refers to the thirteen new states: and when others shall be admitted into the Union, it will refer to them as it did to the old, and now does to the new. "The people" "of the several states, which may be included within this Union," as the constituent power of the federal govern

ment.

CONGRESS HAS NO RIGHT OF SOIL, OR JURISDICTION IN ANY STATE; UNLESS IT IS BY THE GRANT OF THE STATE.

I can adopt no course of reasoning, or use any language that so well supports these positions, as that of the late Chief Justice of this Court. "It is in the 8th section of the 1st article we are to look for cessions of territory, and of exclusive jurisdiction. Congress has power to exercise exclusive jurisdiction over this district, and over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of, &c. It is observable, that the power of exclusive legislation, (which is jurisdiction,) is united with cession of territory; which is to be the free act of the states."

"It is difficult to compare the two sections together, without feeling a conviction, not to be strengthened by any commentary on them, that in describing the judicial power, the framers of our con

stitution had not in view any cession of territory, or, which is essentially the same, of general jurisdiction.”.

"It is not questioned, that whatever may be necessary to the full and unlimited exercise of admiralty, and maritime jurisdiction, is in the government of the Union. Congress may pass all laws which are necessary and proper, for giving the most complete effect to this power. Still, the general jurisdiction over the place, subject to this grant of power, adheres to the territory, as a portion of sovereignty not yet given away. The residuary powers of legislation are still in Massachusetts. Suppose, for example, the power of regulating trade, had not been given to the general government; would this extension of the judicial power to all cases of admiralty and maritime jurisdiction, have divested Massachusetts of the power to regulate the trade of her bay?" 3 Wh. 388, 89.

Alluding to the powers of congress, wherever, and however exercised, the Court use this language: "This power, like all others which are specified, is conferred on congress as the legislature of the Union; for, strip them of that character, and they would not possess it; in no other character can it be exercised;" 6 Wh. 424.

"Since congress legislates in the same forms, and in the same character, in virtue of powers of equal obligation, conferred in the same instrument, when exercising its exclusive powers of legislation, as well as when exercising those which are limited," &c. Ib. 426. The Court put their finger on that power which enabled congress to legislate in the states, or elsewhere.

"The American states, and the American people, had been taught by the same experience, that this government would be a mere shadow, that must disappoint all their hopes, unless invested with large portions of that sovereignty which belongs to independent states. Under the influence of this opinion, and thus instructed by experience, the American people in the conventions of their respective states, adopted the present constitution;" 6 Wh. 380, 1. "A judicial system was to be prepared, not for a consolidated people, but for distinct societies, already possessing distinct systems, and accustomed to laws, which, though originating in the same great principle, had been variously modified;" 10 Wh. 46. "The power having existed prior to the formation of the constitution, and not having been prohibited by that instrument; remains with the states, subordinate to the power granted to congress on the same subject;" 5 Wh. 16, 17, S. P.; 9 Wh. 198, 9; 4 Wh. 425; 12 Wh. 448; 2 Pet.

466.

"It is not the want of an original power in an independent sovereign state, to prohibit loans to a foreign government, which restrains the (state) legislature from direct opposition to those made by the United States. The restraint is imposed by our constitution;"

2 Pet. 468.

Had the constitution not been adopted, the Court points to that power which alone can restrain "a single sovereign unconnected power;" 6 Cr. 136; a state, a nation, over whom no external power

can operate; 7 Cr. 136; an independent sovereign state; 2 Pet. 468; which can restrict itself, and open its territorial boundaries to another jurisdiction. In these, and the opinions of the Court already referred to, I find in my judgment the most ample support of the preceding views.

That the rights of soil, and general jurisdiction over the whole territory, within the boundaries of the several states, was invested in the people of each, as absolute sovereigns of both; that neither right can be exercised, but by a grant from them, and that what is not given away by cession, still remains with them. Residuary sovereignty is also defined to be what each state has reserved to itself, or excepted from the grant; and not as commentators define it, what "the people of the nation," have been pleased to leave, to "the people of the states respectively."

If, in the course pursued, I have used plain terms in relation to those theories which appear to be in direct contradiction to the whole political history of the country, to all the declarations of the rights of the states and people, by themselves, by conventions, legislatures, congress, as well as all the great principles of government, thus announced and sanctioned by this Court; if in testing the constitution by these fundamental principles, and the old established maxims of the common law, I have arrived at conclusions which do not suit the spirit of the times, and the habits of the day, in constitutional discussions; it has been in submission to the constituted authorities of the country, political and judicial, whose union of opinion, and their striking coincidence with the words, provisions, and history of the constitution, leave no doubt on my mind as to its meaning and intention. In expressing my views, in terms of perfect conviction, of their correctness, it is not from any reliance on my own opinion, or train of reasoning; but having found fundamental principles, too clearly established to be shaken by any authority, subordinate to that of this Court, I feel with them; that "this concurrence of statesmen, legislators, and of judges, in the same construction of the constitution, may justly inspire some confidence in that construction;" 6 Wh. 421. In one respect, my conclusions differ from those of the late Chief Justice. To my mind he has given no construction to the constitution; he has only declared what it says, by carrying out the definition of the general terms it uses, and making a practical application thereof, to the various cases, in which he has delivered the opinion of the Court.

On inspecting the constitution judicially, no one can fail to be impressed with the truth and force of his remarks.

"A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means, by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients