"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.