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their delegated power, established a Constitution or form of Government, to regulate and determine by whom, and in what manner, the authority of the people of Virginia was thereafter to be executed. As the people of that country were the genuine source and fountain of all power that could be rightfully exercised within its limits, they had therefore an unquestionable right to grant it to whom they pleased, and under what restrictions or limitations they thought proper. The people of Virginia, by their Constitution or fundamental law, granted and delegated all their supreme civil power to a Legislature, an Executive, and a Judiciary; the first to make; the second to execute; and the last to declare or expound the laws of the Commonwealth. This abolition of the old Government, and this establishment of a new one, was the highest act of power that any people can exercise. From the moment the people of Virginia exercised this power, all dependence on, and connection with, Great Britain, absolutely and forever ceased; and no formal Declaration of Independence was necessary, although a decent respect for the opinions of mankind required a Declaration of the causes which impelled the separation, and was proper to give notice of the event to the nations of Europe. I hold it as unquestionable, that the Legislature of Virginia, established as I have stated by the authority of the people, was forever thereafter invested with the supreme and Sovereign power of the State, and with authority to make any laws in their discretion, to affect the lives, liberties, and property of all the citizens of that Commonwealth. * * The Legislative power of every nation can only be restrained by its own Constitution; and it is the duty of its Courts of Justice not to question the validity of any law made in pursuance of the Constitution. There is no question but the act of the Virginia Legis. lature of the 20th of October, 1777), was within the authority granted to them by the people of that country; and this being admitted, it is a necessary result that the law is obligatory on the Courts of Virginia, and, in my. opinion, on the Courts of the United States. If Virginia, as a Sovereign State, violated the ancient or modern law
1777, she was answerable in her political capacity to the British nation, whose subjects have been injured in conse
jonne of that law * * * * * * * * * In June. 1776, the Convention of Virginia was a free, Sovereign, and Independent State; and on the fourth of July, 1776, following, the United States, in Congress assembled, declared the thirteen United Colonies free and Independs ent States; and that, as such, they had full power to levy war, conclude peace, etc. I consider this as a Declaration, not that the United Colonies JOINTLY, in a collective capacity, were Independent States, etc., but that each of them was a Sovereign and Independent State ; that is, that each of them had a right to govern itself by its own authority and its own laws, without any control from any other power upon earth !”
Is authority clearer, stronger, or higher, needed to show the utter groundlessness of Judge Story's argument? If so let us turn to what Chief Justice Marshall said, in delivering the decision of the Supreme Court of the United States, in the great case of Gibbons vs. Ogden, in 1824. Here it is :
6 As preliminary to the very able discussion of the Constitution which we have heard from the bar, and as having some influence on its construction, reference has been made to the political situation of these States anterior to its formation. It has been said that they were Sovereign, were completely Independent, and were
connected with each other only by a league. This is
Judge Marshall here distinctly affirms, judicially affirms, from the Bench of the Supreme Court of the United States, that the States were separate and distinct Sovereignties when the Articles of Confederation were entered into, and that these articles were but a league between Sovereign Powers.
PROF. NORTON. Judge; these authorities seem to be strong and to the point. .
MR. STEPHENS. Strong! Why, sir, there is no answer to them. Judge Story's account of the matter, and his whole argument built upon it, has not a single fact to rest upon; and unless something can be offered in reply, not to me, but to these authorities, I shall take up no more time in establishing the correctness of the assumption with which I set out, that is, that the States, in forming their first political Union, from which the present sprung, entered into it, as free, Sovereign, Independent Powers, or, in other words, in the further prosecution of our inquiry, we may now take it as an established fact, that Mr. Curtis was right, in saying that “the Parties to this instrument (the Articles of Confederation) were free, Sovereign, political Communities, each possessing within itself powers of Legislation and Government over its own citizens, which any political society can possess.”
This is equivalent to saying, that the first Constitution was a Compact between Sovereign States, and that the ultimate Paramount authority or Sovereignty under that union remained and resided with the States severally.
* Peters's Con. Rep. vol. v, p. 565.
HISTORY OF THE UNION TRACED--ANALYSIS OF THE ARTICLES OF CONFED
ERATION—THE DEFECTS IN THEM TREATED OF-THE CALL OF THE FEDERAL CONVENTION TO REMODEL THEM-THE SOLE OBJECT OF THIS CONVENTION WAS TO REVISE THE ARTICLES OF CONFEDERATION AND NOT TO CHANGE THE BASIS OR CHARACTER OF THE UNION—THIS APPEARS FROM THE CALL ITSELF AS WELL AS THE RESPONSES OF THE STATES TO ITTHERE WAS NO INTENTION TO CHANGE THE FEDERAL CHARACTER OF THE UNION.
It, then, being historically and judicially established that the thirteen States, as separate and distinct Sovereign Powers, declared their Independence, and as such entered into their first Union under the Articles of Confederation of 1777 or 1781, according as we may consider the date of the agreement to the terms of the Union by their deputies in Congress, or the time when these terms were acceded to and ratified by all the States; it being further established that citizenship and allegiance were within and under the control of each State under that Confederation as with all other nations; and that each of the States severally, at this period in our history, had full power to confiscate and do what all other Sovereign States by the laws of nations may of right do; and that the right of Eminent Domain which ever accompanies and distinguishes Sovereignty in its fullest extent, was possessed by them severally as separate, distinct States, it now devolves upon us to trace the history of this Union, so formed, from that time to this. If Sovereignty, beyond question, resided with the
States severally at that time, has it ever been changed or parted with by them since ? If it has, it must be shown, and shown by evidence and authority of a conclusive character. Sovereignty cannot pass by implication. If the States were Sovereign when they entered into the Articles of Confederation, they must still remain so, unless they parted with that Sovereignty in those articles, or in the new articles—the new Constitution, as it was calledof 1787, which are the basis of the present Union. Now, in this instrument, the new Constitution of 1787, did the States surrender the Sovereignty which they undeniably and beyond all question possessed in 1783? In this instrument have they parted with their control over the citizenship and allegiance of their citizens respectively? This is the great question. In investigating it, as I have said, we must look not only into the instrument itself, but into the old Constitution, to understand correctly the evils arising under its operation and the remedies applied.
Here, again, I premise by assuming an unquestionable position, and that is, that all grants by Sovereignty are to be strictly construed. Nothing can pass by inference or implication against Sovereignty. It is a fundamental maxim of public law that in construing grants from the Sovereign power, nothing is to be taken by implication against the power granting; nothing will pass to the grantee but by clear and express words. This is true of all grants, even of private rights, from the Sovereign power, and much more stringently is the rule to be adhered to in grants, purporting to surrender Sovereign powers themselves. It is likewise a universal principle and maxim of political law, that Sovereign States cannot
* Broom's Legal Maxims, p. 260. Vattel, 2d Sec. 305-308.
Book, Chap. xvii,