I also refer to the New Hampshire Bill of Rights, of September, 1792:

"ART. 7. The people of this State have the sole and exclusive right

of governing themselves as a free, sovereign and independent State;

and do, and forever hereafter shall, exercise and enjoy every

power, jurisdiction and right pertaining thereto, which is not, or

may not hereafter be by them expressly delegated to the United

States of America, in Congress assembled."

I next beg leave to refer your honors to No. 32 of the Federalist, by

Hamilton, who says:

"An entire consolidation of the States into one complete national

sovereignty would imply an entire subordination of the parts, and

whatever power might remain in them would be altogether dependent

on the general will. But as the plan of the Convention aims only at

a partial union or consolidation, _the State governments would

clearly retain all the rights of sovereignty which they before had,

and which were not by that act exclusively delegated to the United

States_."

Also, to the Federalist, No. 39, by Madison, in which he says:

"The difference between a Federal and National Government, as it

relates to the operation of the Government, is, by the adversaries

of the plan of the Convention, supposed to consist in this, that in

the former the powers operate upon the political bodies composing

the Confederacy in their political capacities; in the latter, on

the individual citizens composing the nation in their individual

capacities. On trying the Constitution by this criterion, it falls

under the national and not the federal character, though perhaps

not so completely as has been understood. In several cases, and

particularly in the trial of controversies to which States may be

parties, they must be viewed and proceeded against in their

collective and political capacities only. But the operation of the

Government on the people in their individual capacities, in its

ordinary and most essential proceedings, will, on the whole, in the

sense of its opponents, designate it, in this relation, a National

Government.

"But if the Government be national with regard to the operation of

its powers, it changes its aspect again when we contemplate it with

regard to the extent of its powers. The idea of a National

Government involves in it not only an authority over the individual

citizens, but an indefinite supremacy over all persons and things,

so far as they are objects of lawful government. Among a people

consolidated into one nation, this supremacy is completely vested

in the National Legislature. Among communities united for political

purposes, it is vested partly in the general and partly in the

municipal Legislatures. In the former case all local authorities

are subordinate to the supreme, and may be controlled, directed or

abolished by it at pleasure. _In the latter the local or municipal

authorities form_ DISTINCT AND INDEPENDENT PORTIONS OF THE

SUPREMACY, _no more subject, within their respective spheres, to

the general authority, than the general authority is subject to

them within its own sphere. In this relation, then, the proposed

Government cannot be deemed a national one, since its jurisdiction

extends to certain enumerated objects only, and leaves to the

several States a residuary and_ INVIOLABLE _sovereignty over all

other objects._ It is true that, in controversies relating to the

boundary line between the two jurisdictions, the tribunal which is

ultimately to decide is to be established under the General

Government. But this does not change the principle of the case. The

decision is to be impartially made according to the rules of the

Constitution; and all the usual and most effectual precautions are

taken to secure this impartiality. _Some such tribunal is clearly

essential to prevent an appeal to the sword and a dissolution of

the compact_; and that it ought to be established under the general

rather than the local Governments, or, to speak more properly, that

it could be safely established under the first alone, is a position

not likely to be combated."

I will refer, also, to the letter of Gov. Seward, written to Gov.

Gilmore, of Virginia, October 24th, 1839, taken from the Assembly

Journal, 63d Sess., 1840, p. 55. That distinguished public man says:

"You very justly observe, 'that neither the Government nor the

citizens of any other country can rightfully interfere with the

municipal regulations of any country in any way;' and in support of

this position you introduce the following extract from Vattel's Law

of Nations, 'that all have a right to be governed as they think

proper, and that no State has the smallest right to interfere in

the government of another. Of all the rights that belong to a

nation, sovereignty is doubtless the most precious, and that which

other nations ought the most scrupulously to respect if they would

not do her an injury.'

"It might, perhaps, be inferred, from the earnestness with which

these principles are pressed in your communication, that they have

been controverted on my part. Permit me, therefore, to bring again

before you the following distinct admissions: 'I do not question

the constitutional right of a State to make such a penal code as it

shall deem necessary or expedient; nor do I claim that citizens of

other States shall be exempted from arrest, trial and punishment in

the State adopting such code, however different its enactments may

be from those existing in their own State.' Thus you will perceive

that I have admitted the sovereignty of the several States upon

which you so strenuously insist. To prevent, however, all possible

misconstruction upon this subject, I beg leave to add that no

person can maintain more firmly than I do the principle that the

States are sovereign and independent in regard to all matters

except those in relation to which sovereignty is expressly, or by

necessary implication, transferred to the Federal Government by the

Constitution of the United States. I have at least believed that my

non-compliance with the requisition made upon me in the present

case would be regarded as maintaining the equal sovereignty and

independence of this State, and by necessary consequence, those of

all the other States."

I contend, then, that the people of the several States, in forming

the State governments, have surrendered to the latter supreme and

sovereign jurisdiction over all questions affecting the State, or its

citizens as a body politic, not included in the grant of power to the

General Government by the Federal Constitution. This surrender

necessarily includes the power and jurisdiction to determine,

co-ordinately with the Federal Government, whether the Federal

Executive Government is acting within or transgressing the limits of

its legitimate authority in any case affecting the State as such, or

its citizens as a body politic, when the question is not one of the

validity or constitutionality of a law of the United States,

operating directly upon individual citizens, and conformity to which

is to be enforced or resisted by suit or defence in the Federal or

State Courts, with the right of ultimate appeal, in either case, to

the Supreme Court of the United States; but, on the contrary, brings

into collision the Federal and State Executive Departments of the

Government, in the exercise of powers which, from their very nature

and the mode in which they are exerted, never can be presented for

the determination of a Court.

And with regard to that proposition I would cite Vattel, Book I.,

chap. 1, sec. 2, upon the proposition that jurisdiction to determine

such a mixed question of law and fact has been ceded equally to the

State as to the Federal Government. Vattel says:

"It is evident that, by the very act of the civil or political

association, each citizen subjects himself to the authority of the

entire body in everything that relates to the common welfare. The

authority of all over each member therefore essentially belongs to

the body politic or State; but the exercise of that authority may

be placed in different hands, according as the society may have

ordained."

I refer, also, to the Federalist, No. 40, by Madison. He uses this

language:

"Will it be said that the fundamental principles of the

Confederation were not within the purview of the Convention, and

ought not to have been varied? I ask, what are those principles? Do

they require that, in the establishment of the Constitution, the

States should be regarded as distinct and independent sovereigns?

They are so regarded by the Constitution proposed. * * * Do they

require that the powers of the Government should act on the States,

and not immediately on individuals? In some instances, as has been

shown, the powers of the new Government will act on the States in

their collective character. In some instances, also, those of the

_existing_ Government act immediately on individuals. In cases of

capture, of piracy, of the post-office, of coins, weights and

measures; of trade with the Indians; of claims under grants of land

by different States; and, above all, in the cases of trial by

Courts Martial, in the Army and Navy, by which death may be

inflicted without the intervention of a Jury, or even of a Civil

Magistrate,--in all these cases the _powers of the Confederation_

operate immediately on the persons and interests of individual

citizens."

I would also refer your honors to the Report of the Committee of the

General Assembly of Connecticut, on a call for the militia, by the

General Government, in 1812. The Report reads:

"The people of this State were among the first to adopt that

Constitution; they have been among the most prompt to satisfy all

its lawful demands, and to give facility to its fair operations;

they have enjoyed the benefits resulting from the Union of the

States; they have loved, and still love and cherish that Union, and

will deeply regret if any events shall occur to alienate their

affection from it. They have a deep interest in its preservation,

and are still disposed to yield a willing and prompt obedience to

all the legitimate requirements of the Constitution of the United

States.

"But it must not be forgotten that the State of Connecticut is a

free, sovereign and independent State,--that the United States are

a Confederacy of States,--that we are a confederated and not a

consolidated Republic. The Governor of this State is under a high

and solemn obligation 'to maintain the lawful rights and privileges

thereof as a sovereign, free and independent State,' as he is 'to

support the Constitution of the United States,' and the obligation

to support the latter imposes an additional obligation to support

the former. The building cannot stand if the pillars upon which it

rests are impaired or destroyed. The same Constitution which

delegates powers to the General Government, forbids the exercise of

powers not delegated, and reserves those powers to the States

respectively."

And that was "approved by both Houses," and the following resolution

passed:

"_Resolved_, That the conduct of His Excellency, the Governor, in

refusing to order the militia of this State into the service of the

United States, on the requisition of the Secretary of War and

Major-General Dearborn, meets with the entire approbation of this

Assembly."

I would also refer to the second speech of Mr. Webster on Mr. Foot's

resolution, in reply to Mr. Hayne, in the Senate of the United States,

where he thus expresses himself:

"The States are unquestionably sovereign, so far as their

sovereignty is not affected by this supreme law (the Constitution).

* * * The General Government and the State governments derive their

authority from the same source. Neither can, in relation to the

other, be called primary; though one is definite and restricted,

and the other general and residuary."

Also, to the case of _Luther_ vs. _Borden_, 7 Howard, 1--one of the

Dorr rebellion cases. The Supreme Court of the United States there

decided that the government of a State, by its Legislature, has the

power to protect itself from destruction by armed rebellion by

declaring martial law, and that the Legislature is the judge of the

necessary exigency.

At this point the Court intimated that they would adjourn to the

following day.

The District Attorney, Mr. E. Delafield Smith, stated that the case of

the _United States_ vs. _William Smith_, one of the ship's company of

the privateer Jefferson Davis, the trial of which had been proceeding

in Philadelphia, had terminated in a verdict. That case involved the

main questions, and also the question of jurisdiction involved here.

Mr. Smith further stated that he had sent for a copy of the charge of

Mr. Justice Grier in that case, and expected to receive it by

telegraph, and he desired to reserve the right to refer to that charge

as one of his authorities in this case.

_The Court_ assented.

Adjourned to Saturday, October 26th, at 11 A.M.

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