YOU ARE NOT A PARTY TO IT!

Enslaved by Consent

The United States Constitution. If you are one the 99% that are made up of the individual
"private people", you are NOT a party to the United States Constitution. I am going to present
to you here the proof in black ink on white paper that will backup and support everything I say
here. All the documented proof will be attached at the end for your reference as evidence.

First and foremost I am going to point out what is in my opinion the mother case of all cases.
This case was before the Declaration of Independence, and before all the founding documents
were written. This is a 1772 case and the cite quoted in this case was from George Mason. One
of the things the Supreme Court relies on when deciding constitutional issues is the writings by
the founders in order to determine the meaning of what their intent was when the court must
decide on the meaning of the constitution. When you discover who George Mason was you will
learn he was one of the founders who took part in the constitutional convention, but about two
weeks before the signing of the constitution he refused to sign it. His writings have been used
as a model for other founders, such as Thomas Jefferson. Jefferson used Mason's writings as a
model to write the Declaration of Independence. I believe this to be very important because of
who George Mason was, there is no Judge in any court that could dispute what George Mason
said in this case.

Robin v. Hardaway

"Now all acts of legislature apparently contrary to natural right and justice, are, in our laws,
and must be in the nature of things, considered as void. The laws of nature are the laws of God;
whose authority can be superseded by no power on earth. A legislature must not obstruct our
obedience to him from whose punishments they cannot protect us. All human constitutions which
contradict his laws, we are in conscience bound to disobey. Such have been the adjudications of
our courts of justice. And cited 8 Co. 118. a. Bonham's case. Hob. 87; 7 Co. 14. a. Calvin's
case."

Right there it says plain as day that acts of the legislature contrary to God's Law must be
considered as void! In other words, God's Law is the superior Law and trumps any man made
laws.
The next issue is we must determine exactly what is God's Law? Where do we get the source of
this Law that can be used to bind any court to have to accept as God's Law? That source comes
from the Bible. And by an act of Congress, they confirm that the Bible IS the Word of God.

PUBLIC LAW 97-280-OCT. 4, 1982, 96 STAT. 1211

Public Law 97-280

97th Congress

Joint Resolution

Authorizing and requesting the President to proclaim 1983 as the "Year of the Bible" .

Whereas the Bible, the Word of God, has made a unique contribution in shaping the United
States as a distinctive and blessed nation and people;

On February 3rd, 1983, President Ronald Regan signed Proclamation 5018 - Year of the Bible.

So now we have the 1772 Robin vs Hardaway case that clearly states God's Law is the superior
Law and any man made Law contrary to God's Law must be considered as void. Then we have
an act of Congress signed by Proclamation by President Ronald Regan, confirming that the Bible
is the Word of God, which is the source to find what all of God's Laws are.

The next thing I want you to think about is to go back when the founders signed the Declaration
of Independence. At that moment in time when the founders signed the Declaration of
Independence, and when the war with the British ended, did we have a government in place at
that moment in time? The answer is no, we did not. Did the King not FREE all his subjects that
were here and make every single man and woman a free person? Yes he did. So at that moment
in time, man was free and became his own individual sovereign King. As a sovereign King over
yourself no other man has any authority to make any Law over you nor does he have any
authority to rule over you.

Think about that. Could you walk into Wal-Mart and make rules and laws over some stranger
employee working there, where they would become bound and subject to whatever rules and
laws you decided to make over them? Of course not. So by what authority does any man have
over another man to be able to do that? There is none! They have no authority!

When the founders got together and decided to form a government, and when they signed onto a
new constitution, did YOU ever sign onto that? Where is your contract that you made with them
and that you signed to become a party to their government? There is none. It does not exist!

Here is a case that proves you are not a party to the United States Constitution.

Padelford, Fay & Co. v. Mayor and Aldermen of City of Savannah, 1854
"*55 But, indeed, no private person has a right to complain, by suit in Court, on the ground of a
breach of the Constitution. The Constitution, it is true, is a compact, but he is not a party to it.
The States are the parties to it. And they may complain."

There it is right there in black and white. The court has clearly stated that you are a "private
person" and that no "private person" has a right to complain, by suit in Court on the ground of a
breach of the Constitution, because YOU are NOT a party to it! The States are the parties to it,
and only they may complain!

You may be thinking now, yeah, but the Constitution says "We the People" so that means us and
that we are the ones that granted that to the government to be formed. You think? Well let's take
a look at what "the People" means.

Bouvier's Law Dictionary

People:

A nation in its collective and political capacity.

In neutrality laws, a government recognized by the United States.
When the term the people is made use of in constitutional law or discussions, it is often the case
that those only are intended who have a share in the government through being clothed with the
elective franchise.

So based on their legal definition of People, it means those who are intended who have a share in
the government through being clothed with the elective franchise. So who exactly would the
elective franchise be? It isn't YOU and it isn't ME! Not unless you are an elected official of that
franchise! What does franchise mean, anyway? Let's take a look.

Bouvier's Law Dictionary

Franchise:

"A special privilege conferred by government on individuals, and which does not belong to the
citizens of the country generally by common right."

Wow! So the federal government and the 50 states are all a part of a government franchise made
up of private individuals that become members and parties to it by becoming elected officials.
Looks like a mighty fine private club they have created for themselves, doesn't it?

No wonder all oaths come under CFR 22, Foreign Relations, where upon their oath to office they
relinquish their citizenship! They have agreed by their own consent to join the club and become
one of its members and abandon their current citizenship to do so!

Now let's take a closer look at that Preamble to the United States Constitution.
Preamble

We the People of the United States, in Order to form a more perfect Union, establish Justice,
insure domestic Tranquility, provide for the common defence, promote the general Welfare, and
secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this
Constitution for the United States of America.

We the People of the United States,

The People of What? The United States. What IS the United States? It is a foreign corporation
within a 10 square mile outside the jurisdiction of the territory that makes up the rest of the land
throughout America.

Next it says..... in Order to form a more perfect Union,

Form a Union between WHO? The delegates from the 13 colonies. They wanted to get together
and form their own Union. The United States, Inc., and by adding their colonies together as
separate sub-corporate States.

Next it says.... establish Justice, insure domestic Tranquility, provide for the common defense,
promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity,

Establish, insure, provide, promote and secure...for OURSELVES... WHO is ourselves? Why
that can only be the delegates that got together to form themselves a more perfect Union between
themselves and they are the only ones that ever signed onto the contract known as the
Constitution.

Next it says... do ordain and establish this Constitution for the United States of America.

WHO ordained and established that Constitution? THEY did. The delegates. They got together
and decided to form a more perfect Union for themselves, between themselves, for THEIR
justice, tranquility, common defense, general welfare, securing THEIR blessings of Liberty to
THEMSELVES and THEIR Posterity.

In the words of the late George Carlin....it's a private club, folks....and YOU AIN'T IN IT!

Can you now see why judges threaten you with contempt if you bring up this constitution in their
courts again? It is because it does not apply to you because you are not a party to it! If you are
not a party to it then you cannot complain about it. And if they are telling you that you cannot
complain about it for a breach of it, then that means it can't apply to you either. And every single
law, code, statute, regulation, public policy, ect., ALL stems from the constitution. It ALL started
from that one document. So if you are not a party to the constitution, then you are not a party to
the STATE OF XXXXX, INC., because the corporate States were formed by the United States,
Inc., by having to be admitted into THEIR Union to become a sub-corp State of THEIR Union.
And ALL laws, codes, statutes, regulations and public policies of the individual sub-corp States
do not apply to you because you are NOT a party to the Constitution of the United States, Inc.
It's ALL a private club that only elected officials of the mother ship corp. known as the UNITED
STATES, INC., and all the sub-corp. STATE OF XXXX, INC'S are parties to it!

Do you now see WHY they must always have YOUR CONSENT? You have to VOLUNTEER
yourself to become subject to it. And even when you volunteer yourself to become subject to it,
you still have no right to complain because merely volunteering to subject yourself to it does not
make you are party to it! It only enslaves you to it where you become chattel property of the their
corporate empire.

And what did they do to sneak around this little problem so as to trick and deceive you into
getting you to consent and volunteer? They created their own fictional legal person's where they
would have a separate legal person created for every man, woman and child, where they would
use their same Christian Name and ADD their family Name to it and create an entirely separate
new Name comprised of a first, middle and last Name, which is a fiction created by the State that
the State birthed into existence by creating a legal document to create a legal title for that Name,
known as the Birth Certificate.

Meanwhile, you leave the free "private people" outside their private club who are not a party to
it, left to believe they ARE that fictional Name they created so they can freely CONSENT to
being subject to all the laws, codes, statutes, regulations and public policies, all through their
own individual ignorance of not knowing who they are and what they have done to deceive and
trick them into freely consenting.

Isn't that what is required of Satan to own your soul? Doesn't Satan have to get your consent in
order to get your soul? Isn't the elite behind all this government creation Satan worshipers? They
all sold their souls to Satan so they can have their power and wealth over the masses. And the
Satan worshipers have designed a scheme to trick and deceive you in order to get you to give
your consent to sell them your soul through consenting to become a member of their satanic club
by accepting to claim their Name they created for you through the birth certificate.

1599 Geneva Bible:

Revelation 13:17
"And that no man might buy or sell, save he that had the mark or the name of the beast or the
number of his name."

What does every man, woman and child need in order to buy or sell? They have to have a legal
Name that consists of a first and last Name. Man never had last Names. They had Christian
Names which was a first Name and could have a middle Name. There was no last Name. They
were known by first Names and being from the family of Name and/or from the Tribe of.

If you search through the Bible everyone only has a first Name. They are called by a first Name
and referred to by being from the family of xxxxx, or being from the Tribe of xxxxx, or being
from the family of xxxxx, from the Tribe of xxxxx. There are no last Names!

For many years some have felt the SS number was the mark, and some feel it will be the micro-
chip. But what is the one thing every man, woman and child has now that they must have just to
be able to buy or sell within their system they created? The fictional legal Name that was created
by a birth certificate. So could the Name actually be the mark? And what better deception to use
than a fictional Name created by the State that just happens to look the same as your given
Christian Name and adding your family Name to that in order to create the illusion that is your
Name when it is not? And because of our ignorance of not knowing what Names are and their
meanings, we have all been easily deceived into freely accepting and consenting to it all, where
we have accepted and taken the mark!

So who exactly are we and where exactly do we get our rights?

1599 Geneva Bible

Genesis 26

In the Bible, book of Genesis 1:26-30, to wit:

26 And God said, Let us make man in our image, after our likeness: and let them have
dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and
over all the earth, and over every creeping thing that creepeth upon the earth.
27 So God created man in his own image, in the image of God created he him; male and
female created he them.
28 And God blessed them, and God said unto them, Be fruitful, and multiply, and
replenish the earth, and subdue it: and have dominion over the fish of the sea, and over
the fowl of the air, and over every living thing that moveth upon the earth.
29 And God said, Behold, I have given you every herb bearing seed, which is upon the
face of all the earth, and every tree, in the which is the fruit of a tree yielding seed; to you
it shall be for meat.
30 And to every beast of the earth, and to every fowl of the air, and to every thing that
creepeth upon the earth, wherein there is life, I have given every green herb for meat: and
it was so.

God made us in his image and in his likeness and he gave us dominion over this earth and all
things in and on this earth. These are your natural rights granted to you by your creator, which no
other man on earth can take away from you, UNLESS, you freely consent and volunteer to give
up your God given rights to become a subject to another man's laws.

Do you consent? Do you freely volunteer?

We all have been consenting and volunteering because of ignorance!

1599 Geneva Bible

Hosea 4:6
"My people are destroyed for lack of knowledge because thou hast refused knowledge, I will also
refuse thee that thou shalt be no Priest to me: and seeing thou hast forgotten the Law of thy God,
I will also forget thy children."

Well that certainly says a lot right there, doesn't it? We have all obviously forgotten who we are,
what are real rights are, where that authority comes from, and through ignorance from our lack of
knowledge, we have allowed ourselves to become deceived by freely volunteering and
consenting to be subject to all the laws, codes, statutes, regulations and public policies, that only
pertain to a private club of a few, that is made up of a mother corporation known as a senior
corporation known as the United States, Inc, and all its sub-corporations of the 50 State of
XXXX, Inc's, none of which we are a party to. And those corporations are under the bigger
world corporations such as private banking cartels out of London, the Queen and the Vatican.

The most deceptive part of all this, is that the elite behind these corporate powers worship Satan
and represent evil, where in order for them to steal your souls and renounce your allegiance to
your creator, they must get you to freely volunteer yourself by consent to become a subject of
their evil empire! And we all have done this because of our own ignorance by allowing ourselves
to be dumbed down generation after generation. They have used their media sources to feed us
with. They have used their powers to enslave us and take our wealth away and force us into
working longer hours, forcing our women to have to work just to make ends meet, and while at
the same time leaving us with no free time to learn anything and know the truth, where our most
common source of information fed to us comes from their controlled media outlets, such as
newspapers, television, radio, etc. We have been duped and we have taken their bait hook, line
and sinker.

Everything you ever acquire you are acquiring it all on behalf of the State where all property is
being vested in the State where you have nothing.

Senate Doc #43, page 9, second paragraph in the right column.

"The ultimate ownership of all property is in the State; individual so-called "ownership" is only
by virtue of Government, i.e., law, amounting to mere user; and use must be in accordance with
law and subordinate to the necessities of the State."

Congressional Record - House - March 9, 1933

"The money will be worth 100 cents on the dollar, because it is backed by the credit of the
Nation. It will represent a mortgage on all the homes and other property of all the people in the
Nation.

The money so issued will not have one penny of gold coverage behind it. because it is really not
needed. We do not need gold to back our internal currency."

They are using INTERNAL currency. And everything you acquire is vested in the State and
becomes a mortgage on ALL property acquired. How can this be? How can they do that?
They do it through the legal Name created by the States with their creation of the birth
certificate.

They create a legal Name that the State holds the legal title to (birth certificate), and then they
issue you a certificate called Certificate of Live Birth. That certificate represents the legal Name
the State created. You then go out into the world and conduct all your business under the use of
that legal Name the State created. You thought that was YOUR Name, but it is not. It is a
fictional Name that was created by the State, in which the State holds the legal title to it.

When you were born you were given what is known as a Christian Name. The Christian Name
consists only of a first Name and could include a middle Name. There is no last Name. What you
refer to as a last Name is the family Name that you were born of. The Name the State created
does have a last Name. All corporate entities must have a last Name which you can find under
Delaware legislation.

The State takes the same Christian Name you were given at birth, then they take your same
family Name you were born of, and they put those Names together to create a new fictional
Name that is the legal person.

For example a proper Christian Name would look like this:

John Doe, of the family Smith

The fictional Name the State created would look like this:

John Doe Smith or JOHN DOE SMITH

As you can see, they look close to the same, but they are in fact two complete separate and
different Names. One is the Name used by man and one is a fictious Name that pertains to a
fictional entity that the State created and is called the legal person.

Some people believe because the Name appears to be the same and because the mother signed
the birth certificate as Informant that this makes the parents a grantor to this Name and gives us
the rights to this Name where we could somehow go back and reclaim it. I do not agree with that
theory. The Names are not the same. They are two complete different and separate Names from
each other. And anyone can choose to take any Name they want even though others may already
be using that Name. Otherwise there could never be more than one John Smith. But there are
thousands of John Smith's out there. And even though you may be known as John Doe, of the
family Smith, that is not the same Name as John Doe Smith or JOHN DOE SMITH created by
the State. They are as different and separate from each other as is a green apple and a red apple
are different from one another. They are both apples, but they are not the same apples.

As you go through life and use that legal Name the State has issued you a certificate of a Name
they created. Everything you acquire under that Name is being acquired on behalf of the State. It
is no different than say, where you form a corporation and you go acquire property under that
corporate Name. The property is vested in the corporation. You do not have any interest in that
property personally. But as an officer of that corporation you do have use and control of that
property. You hold the interest in the corporation through the legal document that makes up the
corporation.

The State holds legal title to that Name. So everything you acquire under that Name becomes
automatically vested in the State. Plus you are using their "internal currency" to acquire
everything with. You use their internal currency that is backed by nothing, and you acquire
everything under their Name that they created the State holds the legal title to. (birth certificate)

Since you are in possession of a certificate bearing that legal Name that the State issued to you,
you are just a beneficiary of everything pertaining to that Name. You have no other interest in
that Name other than being a gift recipient of the certificate issued by the State and all property
acquired by you under that Name.

As a beneficiary and nothing more, you cannot be liable for anything that pertains to that Name.

It is the same with any other type of legal entity such as corporations, LLC's, etc. When a
corporation or LLC is sued for something, it is the assets held by that entity that is subject to
being taken. You as just an officer or President of that entity are not personally liable unless you
sign to be held personally liable. It is the same thing pertaining to the Name. That is a legal entity
created by the State and in which the State holds the legal title to. So any charges ever brought
against John Doe Smith is being brought against that fictional entity. They are not charges being
brought against YOU, John Doe, of the family Smith. So you cannot be personally liable for
anything pertaining to the legal Name John Doe Smith, because you are not John Doe Smith and
you do not hold or own any interest in the fictional entity, John Doe Smith. You are known as
just John Doe, who was born of the family known as Smith. You are nothing more than just a
beneficiary to that legal Name and as just a beneficiary you cannot be held liable for anything
that is brought against that Name.

So how are they getting away with holding you, the man, known as John Doe, who was born of
the family Smith? They get away with it because of our own ignorance every time we make a
false claim by claiming we ARE John Doe Smith.

You walk into a court and what is the very first thing they do? They call out John Doe Smith.
Then John Doe, born of the family Smith, the real man, stands up and approaches the court and
says, here. The very next thing that happens is the Judge asks you, are YOU John Doe Smith?
And then John Doe, who was born of the family Smith, the real man, says YES I AM! At that
point the man has just perjured himself in court making a false claim and self incriminated
himself in the process. And because you are a man and you are your own sovereign King over
yourself, only YOU can say who you are. The court has no authority to dispute your claim of you
claiming to be who you say you are. And they can't prove otherwise. So having no evidence to
prove otherwise, and no desire to anyway, and there being no one in the court to object to the
false claim you just made, the court merely accepts your claim of being John Doe Smith. Since
you made the claim to being John Doe Smith, the court can now hold you liable for the charges
that were brought against John Doe Smith. Even though they know you are not John Doe Smith,
they have no authority to question your authority as a sovereign King over yourself, and they
have to accept your claim, even though it was a false claim!

Do you see now how we are our own worst enemy because of our own lack of knowledge?

"My people are destroyed for lack of knowledge because thou hast refused knowledge, I will also
refuse thee that thou shalt be no Priest to me: and seeing thou hast forgotten the Law of thy God,
I will also forget thy children."

You walk into their temple of justice that you are not even a party to, and you freely volunteer
yourself by consenting to be John Doe Smith! You claimed a Name that is just a legal fiction that
was created and owned by the State in which the State holds the legal title to! Is that insane or
what? Is it any wonder you are deemed incompetent and everyone needs a lawyer? Then the
lawyer can at least try to limit your damages by trying to at least get your costs down or sentence
reduced. Or in some cases might even get you off because of some technicality over their own
private internal laws or rules or procedures.

The same thing happens by claiming ownership of some piece of property you do not own, but
you think you own it because of ignorance. For one, your creator did not give you ownership of
anything. He gave you dominion. Dominion means use and control. You have the right to use
and control any property in your possession that you acquired without having taken it from
someone else that was already using it, but you have no right to own it. And since you acquired
possession of all property by acquiring it with the Name the State holds title to, you have
acquired it under the Name held by the State AND you used their internal currency to acquire it
with. So you can't possibly claim ownership of it! You create a controversy by doing so.

By you creating the controversy, which is by your claiming to own the property, and also
claiming to own it by claiming to be John Doe Smith, is it any wonder they want to lock you up
and/or fine you? Is it any wonder why they declared us all as enemy of the State? We are
constantly going into their private temples making all these false claims! It's insanity!

Wouldn't the smart thing to do whenever they try to serve you with anything or issue you
something that requires their Name to appear in their temple, to just privately send them a notice
of mistake so they can correct their records and resolve any issues they have between
themselves? Since you are NOT John Doe Smith why would you even go into their private
temples of justice? If that ain't you then you have no business going in there! That can only lead
to getting yourself into trouble you don't need. You can't go in there and start arguing their own
internal club membership laws and rules when they don't even apply to you! So why even
bother? It doesn't pertain to you! That ain't you! If property is the issue, that property ain't yours!
It isn't in your Name. It is in their Name! You are only a beneficiary who is exercising his rights
granted to you by your creator which clearly states you have dominion over it! So why should
you care whatever their internal disputes and issues are pertaining to a Name that is a fictional
entity that they hold the legal title to? Send the court a private communication to notify them of
their mistake. They are trying to serve their papers on you the man. It is a mistake!
Hasn't their own court already establish the fact that their man made laws that contradict with
God's Laws, they are to consider their own man made Laws as being void? Sure they did! Let's
look again.

Robin v. Hardaway

"Now all acts of legislature apparently contrary to natural right and justice, are, in our laws,
and must be in the nature of things, considered as void. The laws of nature are the laws of God;
whose authority can be superseded by no power on earth. A legislature must not obstruct our
obedience to him from whose punishments they cannot protect us. All human constitutions which
contradict his laws, we are in conscience bound to disobey. Such have been the adjudications of
our courts of justice. And cited 8 Co. 118. a. Bonham's case. Hob. 87; 7 Co. 14. a. Calvin's
case."

Yep! That is exactly what it says!

And haven't they declared the source of God's Law the Bible when Congress declared the Bible
as the Word of God? Let's look again real quick.

PUBLIC LAW 97-280-OCT. 4, 1982, 96 STAT. 1211

Public Law 97-280

97th Congress

Joint Resolution

Authorizing and requesting the President to proclaim 1983 as the "Year of the Bible" .

Whereas the Bible, the Word of God, has made a unique contribution in shaping the United
States as a distinctive and blessed nation and people;

On February 3rd, 1983, President Ronald Regan signed Proclamation 5018 - Year of the Bible.

Yep! That is exactly what they said! Ok, so what does God's Law say as it is found and stated in
the Bible? Let's take a quick peek at that again.

In the Bible, book of Genesis 1:26-30, to wit:

26 And God said, Let us make man in our image, after our likeness: and let them have
dominion over the fish of the sea, and over the fowl of the air, and over the cattle, and
over all the earth, and over every creeping thing that creepeth upon the earth.
 27 So God created man in his own image, in the image of God created he him; male and
female created he them.
28 And God blessed them, and God said unto them, Be fruitful, and multiply, and
replenish the earth, and subdue it: and have dominion over the fish of the sea, and over
the fowl of the air, and over every living thing that moveth upon the earth.
29 And God said, Behold, I have given you every herb bearing seed, which is upon the
face of all the earth, and every tree, in the which is the fruit of a tree yielding seed; to you
it shall be for meat.
30 And to every beast of the earth, and to every fowl of the air, and to every thing that
creepeth upon the earth, wherein there is life, I have given every green herb for meat: and
it was so.

There it is right there! God made man in his image and gave man dominion over everything! So
that appears to trump any of their man made laws, doesn't it?

And their own court has made it clear that we the "private person" is NOT a party to the
Constitution, so if you are not a party to it and everything within their entire system today stems
from that Constitution, then that means none of that can apply to you since you are not a party to
it!

Padelford, Fay & Co. v. Mayor and Aldermen of City of Savannah, 1854

"*55 But, indeed, no private person has a right to complain, by suit in Court, on the ground of a
breach of the Constitution. The Constitution, it is true, is a compact, but he is not a party to it.
The States are the parties to it. And they may complain."

Is there any more proof or evidence one could ask for? It is all right here as plain as day!

This leaves you with only one option! And that option is you MUST freely consent to subject
yourself to become a party to it!

You are NOT a US citizen. So stop claiming you are! That legal Name is the US citizen, not
you! That legal Name was birthed and born WITHIN their jurisdiction, not you the man!

In order for YOU the living man to become a US citizen you must complete a three step process
first. This is confirmed by their court case, City of Minneapolis v. Reum, 1893

"The United States, in the exercise of their undoubted right, have prescribed the conditions upon
compliance with which an alien may become a citizen of this nation. The act of congress of April
14, 1802, (2 Stat. 153, c. 28, § 1; Rev. St. § 2165,) provides that ‘an alien may be admitted to
become a citizen of the United States in the following manner, and not otherwise. First. He shall,
two years at least prior to his admission, declare before a proper court his intention to become a
citizen of the United States, and to renounce*578 his allegiance to the potentate or sovereignty
of which he may be at the time a citizen or subject. Second. He shall, at the time of his
application to be admitted, declare, on oath, before some one of the courts above specified, that
he will support the constitution of the United States, and that he absolutely and entirely
renounces and abjures all allegiance and fidelity to every foreign prince, potentate, state, or
sovereignty; and particularly, by name, to the prince, potentate, state, or sovereignty of which he
was before a citizen or subject, which proceedings shall be recorded by the clerk of the court.
Third. It shall be made to appear to the satisfaction of the court admitting such alien that he has
resided within the United States five years at least, and within the state or territory where such
court is at the time held one year at least, and that during that time he has behaved as a man of a
good moral character, attached to the principles of the constitution of the United States, and well
disposed to the good order and happiness of the same; but the oath of the applicant shall in no
case be allowed to prove his residence.’"

Have you ever declared, before a court your admission to become a United States citizen, and
renounce your allegiance and sovereignty to your creator? Have you admitted an application,
declared, on oath, before some one of the courts specified, that you will support the constitution
of the United States, and that you absolutely and entirely renounce and abjure all allegiance and
fidelity to your creator, that you were subject to at birth? Has it been made to appear to the court
that you have resided WITHIN the United States five years at least, and within their federal zone
States or territory as a MAN of good moral character, attached to the principles of the
constitution of the United States?

Unless you, as a living man, have completed all of those steps you cannot be a US citizen!!!

And WHY would anyone want to give up their allegiance to their creator and all the God given
rights the creator has granted to you, just to become a member to a private club known as the
United States, Inc and its 50 State, Inc's just become their chattel property subjecting yourself to
over 6 million laws they have created on their internal books, and to a group of elite that worship
Satan?

You would have to give up your allegiance to God. And that is all that God wanted. If you became a
UNITED STATES citizen you have to give up your allegiance to God. How can you be a US citizen and
a Christian at the same time? It’s an impossibility in law.

1599 Geneva Bible:

Revelation 13:17
"And that no man might buy or sell, save he that had the mark or the name of the beast or the
number of his name."

Are we selling our souls by accepting the Name and subjecting ourselves to their private system
that is controlled by Satan worshipers? Could the Name they created be the mark of the beast?
Isn't the Name always in our head because that is the Name we know more than anything? And
we use our hand to sign that Name with to sign the Name to everything? Isn't it true you can't do
anything without that Name? Would a bank let you open an account with just your Christian
Name which is just your first and middle Name and without listing a last Name? Could you get
hired by a company doing the same by filling out an employment application to get a job? Could
you get a driver's license, social security card, passport, or any government issued form using
only your Christian Name? I doubt it.
I'll leave it up to you to decide.

I've attached the documents below to provide the black ink on white paper that supports these
findings.

I AM
Also know as John

Documents attached below:

1 Statutes at Large 1982

2 Proclamation 5018 - Year of the Bible, 1983
3 Senate-Doc-43
4 Congessional-Record-March-9-1933
5 1599-Geneva-Bible-Genesis 1-26
6 Revelation-13-16-17
7 Hosea-4-6
8 Robin v. Hardaway
9 George Mason - background history
10 Padelford, Fay & Co. v. Mayor and Aldermen of City of Savannah
11 City of Minneapolis v. Reum
 UNITED STATES
STATUTES AT LARGE
CONTAINING THE

LAWS AND CONCURRENT RESOLUTIONS

ENACTED DURING THE SECOND SESSION OF THE
NINETY-SEVENTH CONGRESS
OF THE UNITED STATES OF AMERICA

1982
AND

PROCLAMATIONS

VOLUME 96
IN TWO PARTS

PART 1
PUBLIC LAWS 97-146 THROUGH 97-301

UNITED STATES
GOVERNMENT PRINTING OFFICE
WASHINGTON : 1984


vi LIST OF BILLS ENACTED INTO PUBLIC LAW

Public Public Public
Bill No. Law No. Bill No. Law No. Bill No. Law No .
H .R. 6782 97-306 H.J. Res. 568 97-281 S.2177 97-373
H .R. 6804 97-417 H.J. Res. 588 97-315 S.2218 97-232
H .R. 6863 97-257 H.J. Res. 595 97-368 S.2240 97-221
H .R. 6865 97-352 H.J . Res. 599 97-276 S.2244 97-176
H .R. 6946 97-398 H.J . Res . 612 97-289 S.2248 97-252
H .R. 6955 97-253 H.J . Res. 619 97-420 S.2252 97-322
H .R. 6956 97-272 H.J. Res. 630 97-421 S .2254 97-160
H .R. 6968 97-323 H.J. Res. 631 97-377 S .2271 97-286
H .R . 6976 97-292 H.J. Res. 635 97-469 S.2273 97-464
H.R . 6993 97-449 S.2317 97-231
H.R . 7005 97-439 S.2332 97-229
H .R . 7019 97-369 S .146 97-184 S.2333 97-171
H.R . 7065 97-274 S .187 97-401 S.2355 97-410
H.R . 7072 97-370 S .188 97-305 S.2373 97-175
H.R . 7093 97-455 S .266 97-174 S.2375 97-336
H.R . 7102 97-470 S .478 97-344 S.2386 97-326
H.R . 7115 97-342 S.503 97-459 S.2405 97-283
H.R . 7143 97-438 S .625 97-405 S.2420 97-291
H.R . 7144 97-378 S.634 97-168 S.2436 97-329
H.R . 7154 97-462 S .691 97-180 S.2457 97-334
H.R . 7155 97-399 S .705 97-465 S .2535 97-191
H.R. 7159 97-440 S .734 97-290 S .2574 97-327
H.R. 7292 97-367 S.764 97-374 S .2575 97-190
H.R . 7293 97-310 S.816 97-393 S .2582 97-264
H.R . 7316 97-433 S.823 97-395 S.2586 97-321
H.R . 7356 97-394 S.881 97-219 S.2611 97-387
H.R . 7377 97-400 S.892 97-162 S.2651 97-217
H.R . 7378 97-452 S.896 97-197 S.2706 97-230
H .R. 7406 97-423 S.907 97-285 S.2710 97-384
H.R . 7410 97-454 S.923 97-267 S.2852 97-301
H.R . 7420 97-422 S.1018 97-348 S.2863 97-463
H.R . 7423 97-427 S.1119 97-250 S.2874 97-307
S.1131 97-177 S.2955 97-411
S.1193 97-241 S .3073 97-388
H.J . Res . 207 97-299 S.1210 97-350 S .3103 97-412
H.J . Res. 225 97-223 S. 1230 97-220 S.3105 97-471
H.J . Res. 230 97-209 S. 1340 97-402 S.3113 97-404
H.J . Res . 272 97-165 S. 1409 97-293
H.J . Res . 348 97-158 S.1444 97-380
H .J . Res . 361 97-181 S.1501 97-406 S .J . Res . 53 97-187
H.J . Res . 373 97-157 S.1519 97-211 S .J . Res . 59 97-188
H .J . Res . 382 97-146 S. 1540 97-460 S .J . Res . 67 97-172
H .J . Res . 389 97-147 S. 1573 97-345 S .J . Res . 91 97-153
H .J . Res . 391 97-148 S.1611 97-186 S .J . Res . 95 97-224
H .J . Res . 409 97-161 S. 1628 97-275 S .J . Res . 101 97-441
H .J . Res . 410 97-170 S.1681 97-381 S .J . Res . 102 97-169
H.J . Res. 412 97-178 S .1698 97-359 S.J. Res . 105 97-154
H .J . Res . 435 97-167 S .1735 97-403 S .J. Res . 113 97-316
H.J . Res. 444 97-225 S .1777 97-335 S .J. Res . 122 97-150
H .J . Res. 447 97-166 S . 1808 97-195 S .J. Res . 123 97-240
H .J . Res. 448 97-173 S .1872 97-341 S .J . Res . 131 97-194
H .J . Res . 459 97-445 S . 1894 97-382 S .J . Res . 134 97-149
H .J . Res. 486 97-284 S .1937 97-163 S .J. Res. 140 97-198
H .J . Res. 494 97-233 S .1965 97-407 S .J. Res. 142 97-151
H .J . Res . 496 97-277 S. 1986 97-408 S .J. Res. 145 97-183
H .J . Res . 516 97-239 S.2034 97-383 S .J . Res . 148 97-156
H .J . Res . 518 97-210 S.2036 97-300 S .J . Res . 149 97-193
H .J . Res . 519 97-204 S .2059 97-409 S .J . Res . 160 97-189
H .J . Res . 520 97-270 S.2073 97-242 S.J . Res . 165 97-280
H .J . Res . 526 97-228 S.2154 97-238 S .J . Res . 170 97-182
H .J . Res . 541 97-237 S.2166 97-159 S .J . Res . 174 97-282


xvin LIST OF PUBLIC LAWS

Public Law Date Page
97-272 Department of Housing and Urban Development-Inde-
pendent Agencies Appropriation Act, 1988. AN ACT
Making appropriations for the Department of Hous-
ing and Urban Development, and for sundry inde-
pendent agencies, boards, commissions, corporations,
and offices for the fiscal year ending September 30,
1983 , and for other purposes Sept . 30, 1982 1160
97-273 WEB Rural Water Development Project. AN ACT To
authorize the Secretary of the Interior to proceed
with development of the WEB pipeline, to provide
for the study of South Dakota water projects to be
developed in lieu of the Oahe and Pollock-Herreid
irrigation projects, and to make available Missouri
basin pumping power to projects authorized by the
Flood Control Act of 1944 to receive such power Sept . 30, 1982 1181
97-274 Community Services Block Grant Act, a mendment. AN
ACT To amend the Community Services Block Grant
Act to clarify the authority of the Secretary of
Health and Human Services to designate community
action agencies for certain community action pro-
grams administered by the Secretary for fiscal year
1982, and for other purposes Sept . 30, 1982 1183
97-275 Emergency Fund Act, amendment. A N ACT To amend
the Emergency Fund Act (Act of June 26, 1948, 62
Stat . 1052) Oct. 1, 1982 1185
97-276 Continuing app ropriations for fiscal year 1983. JOINT
RESOLUTION Making continuing appropriations for
the fiscal year 1983, and for other purposes Oct . 2, 1982 1186
97-277 National Alzheimer's Disease Week . JOINT RESOLU-
TION To provide for the designation of the week
beginning on November 21, 1982, as "National Alz-
heimer's Disease Week" Oct . 4, 1982 1206
97-278 New Hampshire and Vermont compact. AN ACT
Granting the consent of Congress to the compact
between the States of New Hampshire and Vermont
concerning solid waste Oct . 4, 1982 1207
97-279 National Respiratory Therapy Week . JOINT RESOLU-
TION Designating the week of November 7 through
November 13, 1982, as "National Respiratory Ther-
apy Week" Oct . 4, 1982 1210
97-280 Year of the Bible. JOINT RESOLUTION Authorizing
and requesting the President to proclaim 1983 as the
"Year of the Bible" Oct . 4, 1982 1211
97-281 Dr. Robert H. Goddard Day. JOINT RESOLUTION To
provide for the designation of October 5, 1982, as
"Dr. Robert H . Goddard Day Oct. 5, 1982 1212
97-282 World Food Day. JOINT RESOLUTION To authorize
and request the President to designate October 16,
1982 , as "World Food Day" Oct . 5, 1982 1213
97-283 Cibola National Forest, N. Mex. ; land exchange and
boundary extension. AN ACT To further amend the
boundary of the Cibola National Forest to allow an
exchange of lands with the city of Albuquerque, New
Mexico Oct. 5, 1982 1215
97-284 National Schoolbus Safety Week of 1982. JOINT RESO-
LUTION Authorizing and requesting the President
to issue a proclamation designating the period from
October 3, 1982, through October 9, 1982, as "Nation-
al Schoolbus Safety Week of 1982" Oct . 5, 1982 1218
97-285 Crimes against governmental officials, p enalties . AN
ACT To amend sections 351 and 1751 of title 18 of
the United States Code to provide penalties for
crimes against Cabinet officers, Supreme Court Jus-
tices, and Presidential staff members, and for other
purposes Oct . 6, 1982 1219


PUBLIC LAW 9 7-280-OCT . 4, 1982 96 STAT. 1211

Public Law 97-280

97th Congress
Joint Resolution
Oct. 4, 1982
Authorizing and requesting the President to proclaim 1983 as the "Year of the Bible" .
[S .J . Res. 165]
Whereas the Bible, the Word of God, has made a unique contribu-
tion in shaping the United States as a distinctive and blessed
nation and people;
Whereas deeply held religious convictions springing from the Holy
Scriptures led to the early settlement of our Nation ;
Whereas Biblical teachings inspired concepts of civil government
that are contained in our Declaration of Independence and the
Constitution of the United States ;
Whereas many of our great national leaders-among them Presi-
dents Washington, Jackson, Lincoln, and Wilson-paid tribute to
the surpassing influence of the Bible in our country's develop-
ment, as in the words of President Jackson that the Bible is "the
rock on which our Republic rests";
Whereas the history of our Nation clearly illustrates the value of
voluntarily applying the teachings of the Scriptures in the lives of
individuals, families, and societies ;
Whereas this Nation now faces great challenges that will test this
Nation as it has never been tested before ; and
Whereas that renewing our knowledge of and faith in God through
Holy Scripture can strengthen us as a nation and a people : Now,
therefore, be it
Resolved by the Senate and House of Representatives of the United
States of America in Congress assembled, That the President is Year of the
Bible .
authorized and requested to designate 1983 as a national "Year of
the Bible" in recognition of both the formative influence the Bible
has been for our Nation, and our national need to study and apply
the teachings of the Holy Scriptures .
Approved October 4, 1982 .

LEGISLATIVE HISTORY-S.J. Res. 165 :

CONGRESSIONAL RECORD, Vol . 128 (1982):
Mar. 31, considered and passed Senate .
Sept . 21, considered and passed House.
 Proclamation 5018 - Year of the Bible, 1983
February 3, 1983

By the President of the United States of America

A Proclamation

Of the many influences that have shaped the United States of America into a distinctive Nation and people, none may
be said to be more fundamental and enduring than the Bible.

Deep religious beliefs stemming from the Old and New Testaments of the Bible inspired many of the early settlers of
our country, providing them with the strength, character, convictions, and faith necessary to withstand great hardship
and danger in this new and rugged land. These shared beliefs helped forge a sense of common purpose among the
widely dispersed colonies—a sense of community which laid the foundation for the spirit of nationhood that was to
develop in later decades.

The Bible and its teachings helped form the basis for the Founding Fathers' abiding belief in the inalienable rights of
the individual, rights which they found implicit in the Bible's teachings of the inherent worth and dignity of each
individual. This same sense of man patterned the convictions of those who framed the English system of law
inherited by our own Nation, as well as the ideals set forth in the Declaration of Independence and the Constitution.

For centuries the Bible's emphasis on compassion and love for our neighbor has inspired institutional and
governmental expressions of benevolent outreach such as private charity, the establishment of schools and hospitals,
and the abolition of slavery.

Many of our greatest national leaders-among them Presidents Washington, Jackson, Lincoln, and Wilson—have
recognized the influence of the Bible On our country's development. The plainspoken Andrew Jackson referred to the
Bible as no less than "the rock on which our Republic rests." Today our beloved America and, indeed, the world, is
facing a decade of enormous challenge. As a people we may well be tested as we have seldom, if ever, been tested
before. We will need resources of spirit even more than resources of technology, education, and armaments. There
could be no more fitting moment than now to reflect with gratitude, humility, and urgency upon the wisdom revealed
to us in the writing that Abraham Lincoln called "the best gift God has ever given to man ... But for it we could not
know right from wrong."

The Congress of the United States, in recognition of the unique contribution of the Bible in shaping the history and
character of this Nation, and so many of its citizens, has by Senate Joint Resolution 165 authorized and requested the
President to designate the year 1983 as the "Year of the Bible."

Now, Therefore, I, Ronald Reagan, President of the United States of America, in recognition of the contributions and
influence of the Bible on our Republic and our people, do hereby proclaim 1983 the Year of the Bible in the United
States. I encourage all citizens, each in his or her own way, to reexamine and rediscover its priceless and timeless
message.

In Witness Whereof, I have hereunto set my hand this third day of February, in the year of our Lord nineteen hundred
and eighty-three, and of the Independence of the United States of America the two hundred and seventh.

RONALD REAGAN

Citation: Ronald Reagan: "Proclamation 5018 - Year of the Bible, 1983," February 3, 1983. Online by Gerhard Peters and John T. Woolley, The
American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=40728.

Read more at the American Presidency Project: www.presidency.ucsb.edu

http://www.presidency.ucsb.edu/ws/?pid=40728).#ixzz1aWJjEp5v
HI, 1.1
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CONGRESSI-oNALII:~I , d D~~-ohs~~ I I I: I
:~ARCII
II
9
I I , ki1
Our fir;,t l:\!k 1.<; t reopen 11.11 sound banks. This Is ani lit 0 m upon :Whom rests this great responsl, i Ity. to gl~e
csserit lnl prehmtnnr: to subsequent ler:lsl.ntlon directed I :hi Il r support l~ this I particular matter ~nd at. this'I

nrrnmst spoculnt lon \ Ilh the funds of depositors and other I 11::\ tit Ill. hour J i I
II
1\

,,1;11:1t[(;I;S of J;o;ltlon of trust. tt st therefore, tbat there will be no Member: of this

, It: order that, the first objective-the openlng of banks ~ H S a either, 'side of thd Chamber who -r~11 object to
for t.he rosurrmtlon 0 business-may be accomplished. I ask [th s a Irtl?USrcon.~ent rCQ11est. iI
of thI' Congress the I mediate enactment of legislation glv- i i f 'f re aerlng under the rules of the HOUS~ and it were
In~ to the executive ranch of the Government control over, 'suo pe Io daY'ltbe Speaker ~01l1r1 recogni~e aD?one ~o move
banks for the protec ion' of depositors; authority forthwith, to su en the rUles'l and Pa:ts
this bill with l\ lllmltatlon of
to 'OPP!1 such banks ds hrrve already been ascertained to be I 140 m] ut s' debate, This ir~ues~ gives 40 ml~utes' debate
In sound condrtlon and other such banks. as rapidly as pos- Ion tl:\! b Il, I I trust. -there! e, under the pec~Ual' circum-
r,ibic; find fiuthority Ito reorganlze and reopen such banks :st~ce, a d 'under t*e sertou sttuattonwhlch cpnfronf,~ ti,"
1

as may be found to require reorgunization to put them on 'co ntr • 'e'wlll ' agree to ta.k~ this bill up now.:pa,ss H. send
a sound lmsls' : . . 'it 0 t e eriate so it may' become a law this ,evening, and
1 a,k' nl~1~I;dmentsfs'to the Federal Reserve Act to provide 'th s b' a le the:Pre~ldent bf:the United state~lto open the
for such additional c rrcncy, adequately secured, as it may Iba kSito 10r'rO~ and give not only the bankaj but; business
become necessary to ssue to meet all demands for currency I in ere. s nel t~e people of trls country rellef·11
and at the same tlriIh to achieve this end without· Increas- I Mr.!s LL. IMr.lspeakcrtreservinw'the right to object,
Ing the unsecured Injdebtedness of the Government of the, I well: p rec1atEl,theJiIDPorta ce of what the ~en'tleman from
United States. ~' Te;nne ise has said. Of cour e it is ent ely out! of the ordl-
I cannot too stron ,ly urge upon the Congress the clear I nary t p S5 leglslatlOn' in th House that, as ft\r as I know,
necessuv for immer iatc action. A continuation of theiliis hot ve In print tt the U¢e it is offered, Ii do not know
st rarumlntion of bankjlng facilities Is unthinkable. The pas-II that Iii. possible 0 distribute copies c r th~ bill to the
SUI:e of the proposed ~egislatlol1 will end this condition and'IIMem~ 'rs of the Hotbe. but that is not me question before
I trust. with in a short space of time will result In a resump-' lusfher I a the present time. fI'he house is burning down, and
tion of business ncttvrtles. . ' Ii IthF, P si cnt ofthe United: states says this is tl:1~ way to put
In ndditton .. It Is thy belief that this legislation will not] oult t f e. i [ArlPlju5e.l . A!nd to me at this time there is
.ontv lift ·lmmedlately.:nl.1 unwnrrnntcd doubts and suspicions: I aliI.Y '.( no ans.'wer fto th.IS Quast!on, and that is,. to gl'm the i.

in .rcgard to banks ,"hich nrc 100 percent sound but wlll[1 P~esJlj int What h cmnnds land says Is necessary to meet
also mark the beginriing of n new relationship between the: t l 5i ua~on. I.. I !! ' I'
banks andthe people of this country. I, d;n t knowlth~tlI am In favor of 11.11 the-dctatlacnr-
The Members of the new Congress wlll realize, I am con- irl d i it Is bill, .but whether II am or not. I am :golng to g!\;e
fldent., the grave responsibility which lies upon me and upon!. :t e prpsi .ent O.f Ithe United'.• states today hiS. :way. He is
them. ' j UJ!e mfn esponslble.!and we thust at this t,:me foUo";, his lead.
. In the short space :of 5 days It Is Impossible for us to i I hOPQ nb one ion this '-llde iof the !l.isle will object to the
.~ ,formulatc completed mc~s~res to prevcnt the rCCllrfl'nCe of: consi~erabon of the requestl [,.APPlausE.J . '
thc eVIls of the past. 'Ihls docs not and should not, how-i ~,1.r,:b lNKHEAD.1 Mr, 8pbkf'1'. will the g't:tltleman-(:1.
,ever. justify any delay in accomplishing this first step. : for a pa lamentary inQulry~ 1

. At an,earl~ moment I shall request of the Congress two iMr.IB RNS. , I YIeld. . J •
othcr measures which'': I rcgard as of Immcdiate ureency. Mr. 113 HEAD.. I As far hs 1 am advised. tilc Emt," rm1
~ith ac'tian taken thereon we can proceed to the consldera-: not 'y~t opted rUI~s Of pro~edurefor ,thlsCongre~'. A1 I
tlOn of a :ounded program of national restoration. upde 'a dit, unless objection Is raised the ordinary pr'1-
FRANKLIN D. ROOSEVELT. ~edig. s gov.•. emiD. g Ith,•.e H.ou.se during i the se.v.,.·enty-second
THE_ WlIITE HOUSE, March 9, 1933. on 'ss will prevail in the consideration of.' this unani-

-NATIONAL 'BANKING SYSTEM

ous
I ,co ent' request?!
Th 'is EAKER. the gentleman is cimect. '
,:

Mr. BYRNS, Mr. Speaker. I ask unanimous consent for! M 1'0'

ONNOR. iMr. Spehker, will the gentleman yield?
the Immediate ("onsldcrntlon of H.R. 1491. and In It~; con- i 1M. iE NS. I yield. . 1 , ,

sideratlon that therc shall be 40 minute·s of debate, one half II, ! lVIt.!; a CONNOR. Jus~ td clear uphcqllTlitunn\t(',r;
i
01 such time to he controlled by the rrentlemrm from Ala-ill. ~It\lfl ,Ion MI under$ttUld th~ request of 'le ~ellUt'man Lom
barna IMr. STy.MlAr.l.l f\nd the other half by the gentleman:' Tt:nrjdfse. it Involvb the! consl,deratlon of thi;; bill I!' the
lrom P('nn~;yl\'nlll!L IMr. McPADn~N 1; that at the concluslon'll i;I6Id~\ as though thf. mid of
the Seventy-s<'t:oncl COllf(ress
Jor th,e lh·llllL(\ t he previous q\lestl~m I,hall be considered 0$1 ~)ad, adopted, o.nd, as it were, under sUSPtln&ion oj tbe
on\('l'el\ 0\1 the hili to 'fInnl Ill(SSagc. .' rule. ;I'a t the bill ~vill 110t be sub,!ect i,o r,men,Lnrnt. (s
Now, M:r. Sp('aker, may I make thl!; gtatt'ment. with the l .thi" ~brr ct?. .. ! '. .'
Inclull-(l'nce of 1111: lIotlse, !x'!orc this reqllest is ~;ubmitted ::1 " .In NS. Thd hut wlll not be sul'lJect to ,nmfnJmcnt,
The l'rl'~lclellt In Ids mes.'il\!~e has gIVel;. the very best 'or',.' I ',~ .llS ,A.GALL. JThut is the inquiry I wanted to mnke,
rr'r(f;OlU why thl~ request should be ngrcpl.! to. The Senate: I w * d It clearlY nderstoOd.
1
'
I:; now awnltlllf{ tile llctloll of the House upon this partiCUlar.! iTI~91s El\KER. ~stherc iobjectlon to the nlque,:it of the
bill. , ~enl~a from TeI1nes5CC? !
H l~ of thr IMst extreme Importance t.h!~t this bill. intro"! i 'I ~fe as n" obj~ction. i
1111l'('(1 a few moments aHa by the gentlcman from II l.lbama. , : 'I G:Cl rkrcad thp bill, ll..<; follows:
wlTytn': out the rrcornmcncliltlons of the PresIdent llI'epnra- '

Il~a 11 he adoIlt(~d und become 11 lnw today. : i .... i't

, " '..}t lui. 1'191 tIf!
'lory to ollen!ng the banks of the country on tomorrow, An ~ct. t< pr(wlclto rc\lcr In the t'~.!,-.tlp~ natIonal etn"~l"'n,'\- ,\
! bf,nk\J1g, lind ~OJr Nher purposes.
Unll':;s this request b granted there Is, of course, a Pos,'ii- I i ,ne tt c acttlcl, ~tc,,1 That the Congre>lll hereby dt>clart'!j t'.1ll1. l\
,bll1lY t1.lut Ulls legislation may nott become a law tOday,.'.1 ~r. 10 ,Jr.' er cr.!til•.no:!· c~xl5t,1l and. i.th~t It Is 1m.peratl•. '•. ely uect·~ary
'

.ll11(1 11') one In t.hls HOllse or cl:,~where can know just What! ~TJ~. ~jf t Vu~ 'lto efrect rtlm~dlc9 of unlrorm naUonal aPJl,lc:\-
til? ('Ifl'Ot "(Ill be t o m o r r o w . ! f·~ i I] i . : Tlj".E t i' !
. Mr. Spl'uker, the people of'the UnIted States have chosenil : Sr:~ON 1. 'the Il\ctl~n!l, I'\'l(utatlona, nllell. 1I0er.... re.. I'releM!. and
thl" Pl'('~;ldent as the leader' not only of h15' I)lll'ty but lI."!1 r. r(JC~a~ ..at 0. nilIheretO!o.rc or nt'rellftt'r take;n. promUlgated, mado,
the l('(\(lrr' of the Nation. To him they are looking f ' (lr 1!Jjl\IM y the l'rClll~cnt ot ~he United $tatos 01.': the ~~ccrctar.y
'Ii r II' I . I 1 . . or! of t1~IJi:'rr 1U!\lry II1nool March, ~. 1933. pUT81um t to 'tho authority
n c. . c s t lC r . only Ilope. They have confltknec in\ Ct'l'fllflcd y $t1bdl\'l!lIOl\ (blC'~ gl'ctIN' I) nt' tho nl~~ of O.:tober 6,
him un(\ llTe II)okllll{ to hlln aloDc. to restore thIs ,:ount.ry: 1111,7,.1 ':~ 1\ ne-nlle,d. l\fC hr:,.,b.v 'l)'pm\'f'(1 ann conllrttlcll,
to no 1'lI !;!.! prOsperlly. l\lld I :;ubmlt, Ihllt W(', '~ll Memher:;; I ,;',1"[" .:.1_ • \1I111!1\ 1~I"n ('.'1 ~>, ,S1~11, ". /", or·1 ho, '1\:1 . ':< o(:';"'~"'l' 0.
of~ COIlI'res-,
•. ~
I· • '"' ) . ..... ... .) ). \..:/
"L., I (ill t tut,r.. tIl,. "_, "'.J~,l ..."ll. ill I,en \) 1l.L.l'nd<'(l
owe II t,' t~ tlC pc()!,l'" ()f ll"i" C('lll\'!," und O\VCH!Dlh,.)r~. ' t,1 ~,,,,(I '.<'
! f
 1933 IC~NGRES~:n
I'
AL RECOhD-. H~USE
printed and deliver d more tho. $30,000,000, run In' t Iboth national debt. TItat would help balahce the
,
nUd~t;
It
' 83
day and ntcbt, 81 Ilar sums :le now being pr! t d and would take tax-ex~mpt securities out o~ the way and cause
delivered daily. . i I I more income tnxe~ to. bo paid to the 'ctovcrnment an less
r.xrAN. ON OP CURllI!:J1CT NECT.SSART . I I' taxdodglng by the big rich. : I
If the Republlca. Party had , re~ased itself ro )the OPPOSITION TO CO,CENTRA'IION or MO'N~Y AND ·CltEDIT CON-·
clutches of Wall 8t eet and exp/md d the curren y unme- TROL IN THE HAN~S OF A FEW GREAT INtERNATIONAl; DANKlNG
dtntelv after the sto k-rnarkct .crash I 1929 or wit n 0.1year CONCERNS!' ·1:
nrter the crash. our eople would] ha e been saved r rrl
this Mr. I,UNDEEN. I Mr. Speaker, today the Chief Executive
awful money pani. Our Pi'efldent will. doUb lc sl ask sent to this House of Representatives! 0. bo.nklI}g blll tor
amendments to this new law wh~ cdnditions are 0 e nor- immediate cnactm~nt. The author of fhls bUl se~ms to be
mal and. when it is better underytooti. :Under the n W law unknown. No on~, has told us who dra,'!ted the bill. There
the money is issued to the bank~ 'in return for 00 e ent appears to be a. printed COpy at the SPeaker's desk, but no
obligations. bills of exchange. draft!;. notes. trad ccept- printed copies are] available for the H~lUse ,Memb!ers. TIle

. i
ances. and banker's acceptances. I. Tlle money wm,~ worth bill has been driven through the Hous~ with. cycl6nic speed
.JJ 100 cents on the dQHar. becaus.el,it is backed by ljllc dredit after 40 minutes' '.debate, 20 minutes fb.r t.~:.' minbrity and
nndother property 9! all the peop•.lCl.b. th".'e NaticJl1. I
NO GOLD cottltAdE I ' .
The money so is ued will not! Mve lone penn
J
~ of the Nation. It Vl~ll represent amclrtg:\,ge on all the l~orrtes 20:minutes for theimajority.
I h. ave dem (I..,
i
..•.andC. 0. roll call. but have been unab.Ie to .sct.
the attention of the Chair. Others havc done thp same,
f gold notably, Congressm;an SINCLADl, of North Dakota, and Con-
i

coverage behind it. ecause it IS Ireally not needed. e do gressman BtJ,L LbrKE, of North Dak<:>ta, as well, as
some ot
,not need gold to ba k our Internal currency. We yjneed our other Fa:mer-:Labor Members. Fifteen men were stand-
gold to settle our balances with foreign count ie . I Our ing. demanding a : roll call, but that number is not sum-
l

people do not actu ly usc gold as Ii medium of X~h~nge; clent; we therefore have the spectacle of the grEiat HouSe
paper money Is jus as good and Is Imuch easiElf 0 handlc. of Representatives of the United States of America paSsing,
Ho,,:·ever. if gold Is eslrcd as a! b~.cki~g for papa' n~y, we after l\ 4.o-1l\lnute l.'debate. l\ bill its Members never! read and
have a ~urncient a aunt to permit the [tssuanc f $5000 _ never saw, a bill whose author is unknown. The great
000,000 more money and still hayeal gold reserve (If140' pe~- majority of the Members have been unable to get :l. minute's
cent. When Engla d paid us approximately $100.1>00.000 in time to discuss this but; we have been re'used a roll call;
gold last December t e TreasurY shoUld have taken! that gold and We have been refused recoemtlonbr the Chair. I do
and issued $250,000000 in paper money, using ·t~egold as not mean to say that the Speaker of the House of Reprc-
a sufficient coverag of 40 percent, 'and the monevi should sentatives intended to ignore us, but everything was in such
have been put into Icirculation by paying It to Odvernmcnt a turmotl and there was so much excitement tbat we sim')!:,-
employees or other Igovernmental debts. Instead] the gold "were not recognized.
was delivered to tl~e private banks and the Government I want to put mysell on record against a procedure of
given credit for the hmount. The banks used apalrtoe it as this kind and against the use of such methods in pt\;;Slr1~
a base to issue considerable money, which they loaned to legislation affecting millions of lives and bUlions ot dollars.
~heir customers, and thc remainder,j which was th!e most of It seems to I,ne that under this bllI thousands of small banks
It, was sold back to IEngland by the bankers, • I • will be crushed arid wiped out of existence, and that money
DRIVE AGAINST GO~D HOAR~ERS i and credit cant.rOJ.:, wlll be s.'till turthe,r .l' concentrated In the
The gold that is Igiven up by: th~ people In: t~e present hands of those w~o now hold the power. .
crisis should be deli'~ered to the.'.IGo~'ernment, :It should be It is ~afe to sa~ that in n.. orm.ali. tim,ell, 8.tter careful st:..lcly
I.

used to issue additi nal money upo which thcPeople will of a printed copy! Iand after careful dtba~c: and eonstdera-
not have to pay int rest while it lIs i. circulation. I . tton, this bill wo~d never .have p~eJl this House or any
REsENT SATlSFAc-nON .: . . other House. Its; passage ,coUld ibe !aCcomplished only by
Those of us who have worked for 3 yea:s ~rYir.g to .get ra~id procedure, hurried and he9tic ,dFbate• and! a general
the currency cxpa ded have, the eonsolatton of: knowing rush t~r voting wt~hout roll call, i ,.' "
€
that our plan has een adoptecti 1 [do not believe that the

issued that we havcl advocatcd: s1)oUl(1 be issued. *

I believe.In the ,.l~ouse of Rep.rese.,ntat~ves. I belf.eve:n the
expansion is being ade In n nianner that will permit the power that was gh'en lL'I by' the p¢ople~ I believe ,tha~ Con-
mOlit good. Howder. the same kind of moneY; is being gress is the grea~est anq tnost lJOwer'~ body i~ America.
is sound and I believe tha~i the p¢0l?le pave vested in Gonftress their
money, although n1 t as wen s.eco.red. as the mo. ncr' wq pro- UltimO..te I\.nd ft,n~~ power IJt e.ver;vl, ire. nt, v.,ital QUes . tion, and
,po1ied to Issue. ' : ! - : i the Constltutioll ~~rsme out in ~hat'I'! ,

m:.~~~~:o%,~:,ii~:'~:::~~b~;~.i.:~.l~~o~~.~;,~~f 1:. 1I,md~ ~ ~;f~::o~:¥.i.r 'O~q.baD'~.a.• n:~vte~i.S.air~i.l.ifrae 1;".n.:.I~\~~~Sr;~.,.:~O~:~~~

•. , ft..
tril)utlon thn~ will cst !lromotc: the general \\Ielf *e. :
U

I want, the RIt

.C.nk..• es.i • •.
O
wan,
•. •
to sHow th$,t .t: and l\~n, I\gnin.t
It could be paid 0 l~ederal crnplOyees. It cou d be used this bUl and thl:1 method~f :prcjccdure: nnd I believe no
to retire a part of t e national debtland save a c sid~rable °
good wUl come. t Of.it tOl' Amerlfa. rNe mmt not. a!Xilcate
f)Ulll In Interest caC'l year. At ~he iprescnt time ur .tntire our power to ed*ctse jud eJ1t. I Wei must not allow our-
national debt or $ 0,000.000.0001 c0'tld be retlt.ed wltl} . ne.w selv.es to . . bC.. SW. eP.lt!. d. rc '.ou.r f~. t by hySt'rlo., and we must n. at
money without pIa Ing too much money In cltcu allon and let the. power ofl the :Executive ~ral~ our led;.ls.t\ve ;10
tor
4

the G~vernment Ii cd moreth~n ~700.000.000 nUlUly. tion. If we' do,' It 'w6uld tr' bet~r U8 tOt ~bml\nd (\0
liA J: $100,000,000 "~NUAt.LY! I home-and save ,the peopl~ the ~lary,th"y ar~:~Ylng Ull.
I 't d !th b ! I! !' J I look forwa~4 ito thl\t l:1ay w~en!ie shall read tho bUl
ns ea 0 e ~ ks being per.. ml~ted[. to.loa~ $ 5,pOq,ooo,- we arc conslderfrtg., :".'.nd ~ the' au. orot thej bll1. s. tao nd
000 with a reserve ,of from on~ tol three blllion dolh~rB to before the Ho~ laind expJi&,in it; an then. after calm de-
back it up, they sh uld be denied that prlvllegq a ~ l\ Imuch
greater money rese ve required lof them. Then. I1 st
the banks having
fd
of
little money to pay thelr ~<1PO Itors,
liberation and saber jUdirnent-aheJ,' ull and fr~ debate-
I hope to see 8an~ ILnd seNtblc lekisla~lu:l passed~ which will
11ft America oud ot this ~nic and dl$,,~u~r into which Wft
th~Y· could have 4illor 50 cents In actual money 0 lUll k up were plunged byl the World War. 1
every dollar in de 11..'1. We woUldIthen have ~n.f bat!Jklng, " \ !
nnd the Governme,t would ~10t 0'jV(~ a penny 0 Iml~IOm\1 i RULES 0'" tHY. HOURI':
debt. Further, our OoV('rmnent wl)uld, be liavcd Itt~e 1;;'/00.- MI'. POU, Mr, Splmker' l I otTer 1\ rcn,]uUon ;ll~d nslr for
000.000 that JIl now, 11l.:llIg paid lmriually as lntcrf8~ oIn the ' its Immediate! con,sideraU,on. ,I
I .
GENESIS 1:18 4
18 And to Irule in the day, and in the night, and tJer.3HS
hGen5:!
to separate the light from the darkness: and God G£<l.9.6
saw that it was good. 2Cor.li:7
Coll:IO
19 So the evening and the morning were the fOurth
iMan ..l9:4
day, iGen. 8"'7
20 Afterward God said, Let the waters bring Gen.9.1
lGro. 9:3
forth in abundance every 'creeping thing that bath
fEwd.31:17
21ife:and lee the fowl fly upon die earth in the 'open Mdrk7:37
firmament of the heaven.
21 Then God created the great whales, and every- CHAPTE.R2
thing living and moving, which the 'warers brought 'Exod.2<l:lI
E>OO.l1:l1
fOrth in abundance according to their kind, and every DetJtS:I'
Heb.4:.:4
feathered fowl according to his kind: and God saw
i> 1 Cor. 15:45
that it was good.
22 Then God 'blessed them, saying, Bring forth
fruit and mulriply and /ill rhe waters in rhe seas, and
let the fowl multiply in the earth.
23 So the evening and (he morning were rhe Heh
day.
24 ~IMoreover God said, Let the earth bring
forth the 'living thing according to his kind, cattle,
and that which creepeth, and the beast of the earth
according to his kind, and it was so.
25 And God made the beast of the earth accord-
ing to his kind, and the cattle according to his kind,
and every creeping thing of the earth according to
his kind: and God saw that it was good.
26 Furthermore God said, 1"'Let us make man in
om' 'image according to our likeness, and let them rule
over the fish of rhe sea, and over die fowl of the heaven,
and over the beasts, and over all the earth, and over
everything that creepeth and rnoveth On the earth.
27 Thus God created die man in his image: in the
image of God created he him: he created them 'male
and female.
28 And God 'blessed them, and God said ro them,
iBrillg forth fruit, and multiply, and £ill (he earth, and
subd ue it, and rule over rhe fish of the sea, and over
the fowl of the heaven, and over every beast that
1:20 1As fishand wormswhichslide,swim,orcreep,
1 Hebrew,the soul of life,
S Hebrew,face of the firmament.
1:21 1 The fishand fowlshad both one beginning,wherein we see
that nature giveth place to God'swill,forasmuchas the one sort is
made to fly about in the air,and the other to swimbeneath in the
water.
1:22 That is,by the virtueof hisword he gave power to his crea-
1 2:3 Appointeditto be kept holy,that man mighttherein consider
lures to engender.
1:24 1 Hebrew,soul af/ife.
1:26 God commanded the water and the earth to bring forth
1 2:5' Or,tree, as Gen. 21:15.
other creatures:but of man he saith,Letus make:signifying,that God
taketh counsel with his wisdom and virtue,purposing to make an
excellentworkabove allthe restof hiscreation.
1 Thisimageand likenessof God in man isexpounded, Eph. 4:24,
where it iswrittenthat man was created afterGod in righteousness
and true holiness,meaningby these two words,allperfection,aswis-
dom,truth,innocence,power,etc.
!
rnoveth upon the earth.
29 And God said, Behold, I have given unto you
levery herb bearing seed, which is upon all the earth,
and every tree, wherein is the fruit of a tree bearing
seed: kthat shall be to you for meat.
30 Likewise to every beast of the earth, and to every
fowl of the heaven, and to everything that moverh
upon the earth, which hath life in itself, every green
herb s/,all be for meat, and it was so.
31 lAnd God saw all that he had made, and 10,
it was very good. So the evening and the morning
were the sixth day.
2 God restetl, the seventl: day, and ;,mctifieth it_ 15 He
2 seuetb man in the garden.
24 Marriage i5 ordnilled.
22 He crearetll rhe wom-
afl.
1 Thus the heavens and the earth were finished,
and all the 'host of them.
2 For in the seventh day God ended his work
which he had made, "and the seventh day he 'rested
from all his work. which he had made.
3 So God blessed the seventh day, and 'sanctified
it, because that in it he had rested from all his work,
which God created and made.
4 ~ These arc the 'generlrions of the heavens and
of the earth, when they were created, in the day. that,
the Lord God made the earth and the heavens,
5 And every 'plane of the field, before it was in
the earth, and every herb of the field, before it grew,
for the Lord God had not caused it to 2rain upon the
earth, neither was there a man to till the ground,
6 But a mist went up from the earth, and watered
all the earth.
7 The Lord God also 'made the man 20f the
dust of the ground, and breathed in his taee breath
of life, band the man was a living soul.
8 And the Lord God planted a garden Eastward in
'Eden, and there he put the man whom he had made.
9 (For out of the ground made the Lord God to
1:28 The propaqanon of man is he blessingof God, Ps, 128.
1
1:29 God's great liberalityto man, taketh away all excuse of his
1
ingratitude.
2:1 1 Thatis,the innumerable abundance ofcreaturesin heavenand
earth,
2:2 1 Forhe had now finishedhi, creation, but his providencestill
watcheth over hiscreatures,and qoverneth them.
1
the excellencyof hisworksand God'sgoodfl€sStoward him,
2:4 'Or, the originaland beginning.
, God onlyopeneth the heavensand shutteth them, he sendeth
drought and rainaccordingto hisgood pleasure.
2:7 'Or, formed.
1 Heshoweth whereofman'sbody wascreated,to the intent that
man should not gimyin the excellencyof hisown nature.
2:8 Thiswas the name of a place,as some think in Mesopotamia,
1
most pleasantand abundant inallthings,
REVELATION 13:14
!ire to COIll1edowa fuwm RteaWlJl on d!e earth, in dne
sight af men.
l'f And deceived the..-. d=:dwdl On !he ann by
me signs which wae perll!litted to him [0 do in the
;,'igbt of the beasr, S<lyWg i!U iliem iliM dwell on tire
~ tIur:theysboufd makedne 'n~afthe~r,
wlhim ~ the wound <Ofa swol'd. and.did live.
15 'An.·iit, 2S pemu!Ud so him ro give a"spirit
unto the image of dIe beast, 00 rhal: the ilTh'lg<" of the
beast should: spe/k. and shoWd cwse th:tt as rn_y
1326
:I!Swould rn)t worship the muge of rhe be:l!Srshould
be killed.
16 lAnd he urwfe 31ft, both -n and gre:tt, rich
and poc«;, free aod bend, to receiee 2a 'made in tlteir
right b.md or in ilieir fo~.
17 An.&.dur no man might: 1buy or .sell, saee he
iliat had the ?/llUk-k Olf dIe t<Mme c.f the beast 01: tHte
nmnhtt olf his name.
18 'Here is wisdom. Let him d=: hath wir, count
the ilUumber of the beasre for it is tthe"ntaml:rer of

~!.:em tlifeclild.rod ~-.rooghl:1n lIm~ Th", hisltorni5ufili.e !'<i]f:im
ar.efull of .aampl5dsodl milML<>s. tliemostofthBmfeigfled, marw
aiso oone by the devil if! images: as of old i"ltr.e Sf.'1'j)efit, Gen. ?LL By
••••
TIki! ~tqJ!i515 rnliifimted, nct!he iOOlhoou'jd ihe beast ba< !he
truth dGod and dthe:se PlDll!ieries.
13:14 • Ihar Is, im~es by enaila<geor change of the number: fur 'the
WlC!fsliip of them ever 5ince the second Cruocil of Nice, ham been
ordaiOE'din the Choo:li by j:OOlic m:d- and Wlhorily (<:mill)' unto
tteLM/ofGod
2 In the Grnk the Wl1m is ln me Dative case, as much to ~. as;
IIntO'the worship. honor and ob£y.ng of!he beast for iJy this 11rk!1n-
tffiiilfloE''ilfrm<ig51hi, PsemloprcpiJ:.ilii,g ~ duth rni'gh1i1yprofit
the beast of !rome, of whom loll.9 ago he rec.eilied them Wr.£1efore
thesame is ~1ii"nFJY filf-I dlerlllRo2 UrIililgC (Jhlre ltP~btfut
i~ have their begInning from Jhe beast, and ha¥etheir fmm or
ma!1f!ff f!Cm ilio21>Iilid ilie be:\5I(..m ila,>Je lbetr en.:I md use fuffi
ilrl me proifit aoo CMl'1!lC<fiIy dd'.e beN:.
13:15 • And llfthi; mirad" of'the images of the beast \m.t is, Vi~)ch
the oeest hath Ofa.ined 1Oestill:llish ooatry) Ythkh mira(lJ!o\isly
5 akand give judgrneflt.. Of ra1lier ma1Veloosly, !:ly the 'frlllldofthe
false prqphers, the f'apists l:ooks ~re full traugnted
1To gm ll".e as lanrn:s ilOO lammes imitaled the WO!1de15 1:fla_
ilAo>esW100gllt
1]:16 ' The third plaoe, isa most wkked and mDs;:rnsoiem I}'ifrmy
aswas said befur;:. lISOf!JOO overthe~'lflsdmen inthis1Ie!<2. aoo
!War thEir goods and aaioos, in he TJeJd~ l« he is said, t«h
to bling up.."l!1.i:i1l perSOJJS a iyfilOO,OUS servnude, that as bcmdsla1l6
they might seve ,he beast.me! aoo m €'1£Kise {1lIe! all1'i'er goods
and ectons, a peddlEr-fike lOOse dindu!geoces and dspensators
(as they term JhemJ amongst !heir mends. aTldalj<linst orbers to use
most YicIatt i1mdittioos, and to shocroet (llfSill.9s, €\Ieil In Mural
and -civil priv.11e ..ooptJrlf.: oonnaos, wherein all.gootl f>lit1J oughr
tohavep~.
1That is.theiT Cflrism. by which in rbe Sacramef\I \as lhey call i!)
(Jf(mlf.Em,,"timri, th-"Y make Siff'Aie •.rt<J thems4,-es, the persons and
doings of men. ;ig1ling them in 16 iio~d and hands: and as
loTthe sign je'i &/ 011isr (of whlrll ~_ n) and !tre !mlyS3(rament
of Baptsm they mar.e as wid. for 1I:Ihom Christ hath joini"d unto
himself by llaptism. ttJ.is reast mallem challenge IJn1!Othem try her
gveasy Chrism. whkh he dulJbtf:t!l oot to prefer l:l'.>er lli!ptlsm, 00;h
[I] aulfu:4iit¥ aoo 4OCiiCY.
! The ffiilfKof 'the llilmt' of lhe heast
B:H 'Thilt 5, fl.3.>-emy lI<lffic Ill' frlE!{:i:!IlI,e with men, but i~lel
Oflly thosi? which ~ this .loointingaoo OJ!1Isemtion of C!ez.rke!y
to-WI;:' as they call it Re.ld GtatiaflOe Wn.<earltiooe, di5tincti c.
001Jl6, GaP-5;MiIm. etc. dtw>--Se matters.
1HEre ihe £it;.e ~ do r.equie three ~ wllidh~!o2 Sf1:doIm
!otTIe GOO uf1l1Eir greiitl'lBS, adlam:i.i:'r,<lname afld tTIe nunibar of the
niW!ie lite Il'lealftfrog Gs,lI'm ilIi!liIlhit hath oot 11m: iliclr arKlinmg liIDd
ooical ronsure ill slltMng: sennlly hdy oo:!efs, by re£e!Vill9 whErdi
5 'X!!rlmtm~ tile 5i!1Ill€d lIile 00..<1:Cf iimlly blm net al!i!i'.ffi
lhitiligfl ~e 41=1:mtliGiJhlwl>~GJ~ddihE'law{asthe'ldl ill
(;;OO"Iiat,iljJd!hmtootil>itwer-ellladEl.!PifI.ii[COOft.mdCalt~1'IU!1l-
heiofthemj15lfficslhi:mcf.furirotheietl1ingscooffitelhlherulii:-erof
Irntnomeof1ile[P..il9tAndmi>ise;c~Si!tfollihfl'i~l1"Jt\"'~
13:18 ' That is in this !!1lImc;:r of !he beast oC1fliistem that f>opish
wisOOrn,whicl! urrto!hem seemeth the glPiltest of aMDl'he!s.Inthese
""mos S.John e;r,poi.mdeth that $iI)i1'!g wIll:h Wffit ~ of'the num-
ber of Ill? benst. what ii naIh.a!bove his m..-,II {Jf at:C011isaoc.e and his
name. l'hesf:thif1g5. 2ii1h S, .\:ltm., the mark,<!rul!he mmeoflhe beast
00 easilyh;]pj.lelfll1fOOilfl)'mafl: hato ffim?tloe flllmberofthebeast
is w',sdom: that Is,onlytloe v.;;e and IUCh as fla'~ II~ can
mme by that TllJf110el' fur tlli;y must be most iluminated doc1Drsthat
atrai"l tnerellf!K>"i\S rilf;wmis lnII!:wJill-;; du!ledMe
, How great ann ci wiJatCeoomiNtion trns I1!limDer of tIie beast
is. by which ,lie beast acrour,tro rl5...ooom, S, John dedarerh ~f!
tllaewtm:ls Dosr theucernand hawglalit it is? it isso~.3t, ther l
£.lCrul'ieth me vmle man: he is all>tay> leilmill1J, and ~r cOiTl€'th
to the knowledge tllereof: he must he a man indffd that doih at'oain
umo it hkest thou of what rienomi!lc-.uofl it is? verily - "",ii&--1h of
six lhfOuglimltilli'ld perf.ertri Miseth of all tile pats thereof in :their
seve1?J OeoominaIions \,as theyt€ffiltheml· stan!leth of six iJy units.
tens, hur.d~ e:~:SO as there is fl1) ore pat in tne learning 2lf\d
{I({!ed~,,!J1iral ,.~ihidllsoot eaher rE'l''l'ms:i unto the ~ .i!l"ail5lJt
'h'Oeilietq[ltttffeof,{if Clll["dw.;d ilrl ir"" SiiIiI.e:so fulydo all tl'tikl!!JS III
this hiela!l:hy ag!ee one with alUthi:1; and wilh their ~ ThefefuR
tm.tmel beast llonifure:theelghthdmhwmmend by:the nlll'l1ber
of six t!mse De.aetills 11'1hi!:h he~ro:ed. \ri1he prof'm d 1he sOOil
bock Wi!ii:hbooJ.:(satth hel i.1OOgwreadd"rl:wooI1.-eolOO-br..>r.\Ud'
ifle '>tlme 1IOI>.;me of Dro-etrJis. we moogilt good to oome 5eI:ru1!l ifle
5mh: that the '>tlme volume ty adt'Aioo thereof ront(1illfr!g a .~ or
ifle!l!llOOer d six tx;.o/(5 (YAlid! is a oomI:e Pc~) mayJ4e/d a {JEl'fed
form of mtmagitlg all tllitlg>, oodpmed &roprw.: of behavior: Here
til::refore is the number of the bP-'5t. wOO powrah oomhimself all
his j)iillS and briny~ them all back agaifll1fOO hirn..<clf by hls diS[~
pfine in !TlO5t 1M,;!" and CtllflrB1g manne[ IfM1Yman 'li5iTe more of
thl5, let hlm read the glG'is uoon thar ,,]arel am nor igOOf,lilt that
other lritffpTetJtioos ilfi: brought upon this pli= but I thoogtn it
my dwty, \~1i!hme good ~ d all aild lI>-MI'1uttJ-.e ()It~.se uf ally,
tOjJ5iOpOtmdrnaeopnon in this point And formisu.'lJ5l:'especially.
h lhat i!t seelil1€\! oo'[<J me rl€ttJ--~r profit;abl;:. nef nile ill be tll!!e,
tm.t the n!!imhe! of tf-re?!:le"st or of me n;;me of tile beast shook:!
brtake1'l as tliE rommo!1l sort ofirn:erpretas 00 take it FOn!fu num-
ber of the OOilSl: :readi.-eth. giveth aJt illlj:fimah, asa p.lhrk mall; of
s!l(hasbenis,andes.t."~JltiJat~ilOOvea!lo1hersas1hemark
of tho<...e.¥.hom he!D'Ielh best l\ioJ,." IDose mhef eJ:l=Ositions seEm
r<Jiherto be fat FemOllCd from this proJiffiy aoo wTldiiion of that
number: wr.emer you respea: tile Ililme Wti1l!1i or Utan,'OTaOO1iheL
!i:lf these 11'leheast 60th flOT tf'3di, oor Ii forth fIN implint, tll.it
Il1Cl'it diriger.tly fmbiddeth to be taught, and aOOat:~1y oerilfl!J:
he approvetiJ rot :th!:<...e. i:M: ~0IIeih lfiffl1: ar;d ha1eth them that
,
think so oftlli, nllfllbef, lMtlJ iln hatred, gRil1'5 tililfl tllat of Vatil1MK
HOSEA 3:2
according to the love of the Lord toward the children
of Israel: yet they looked to other gods, and 210ved
the wine bottles.
2 So II bought her co me for fifteen pieces of
silver, and for an homer of barley, and an half homer
of barley.
3 And I said unto her, TIlOUshalt abide wieh
Ime many days: thou shalt not play the harlot, and
thou shalt be to none other man, and I will be so
unro thee.
4 For the children ofIsrael shall lremain many days
without a king and without a,'prince, and without
an offering, and without an image, and without an
Ephod, and without Teraphim.
5 Afterward shall the children ofIsrael convert
and seek the LOI'dtheir God, and 'David their king,
and shall fear the Lord and his goodness in the latter
days,
A co"'p!"i"( against the people ami the priests of
4 I"aei.
1 Hear the word of the Lord, ye children of Israel:
for the Lord Ih:lEha controversy with the inhabitants
of the land, because there is no truth, nor mercy, nor
knowledge of God in the land.
2 Byswearing, and lying,and killing, and stealing,
and whoring, they break Out, and 'blood roucheth
blood.
3 Therefore shall die land mourn, and everyone
due dwelleth therein shall be em oH~with the beasrs
of rhe field, and with rhe fowls of die heaven, and
also rhe fishes of the se-ashall be taken away.
4 Yet 'ler none rebuke, nor reprove another: for
thy people are as they that rebuke the Priest.
3:1 i That is,gave themselves wholly to pleasure, and could not take
up, as they that are given to drunkenness,
3:2 1 'lei I loved her and paid a small portion for her. lest she perceiv-
ing the greatness of my love, should have abused me, and not been
under duty: for fifteen pieces of silver were but half the price of a
slave, Exod. 21:32.
3:3 1 I will try thee a long time as in thy widowhood whether thou
witt be mine or no,
3:4 1 Meaning, not only alilhe time of their captivity, but also unto Christ
1 That is, they should neither have policy nor religion, and their
idols also wherein they put their confidence, should be destroyed.
3:5 1 This is meant of Christ's kingdom, which was promised unto
David to be eternal, Ps.72: 11-
4:1 'Because the people would not obey the admonitions of the
Prophet, he citeth them before the judgmem seat of God, against
whom they chieflyoffended,lsa. 7:13; Zech. 12:10; Mic 6:1, 2.
4:2 I In every place appeareth a liberty to most heinous vices, so
that one followeth in the neck of another
4:4 ' As though he would say that it were in vain to rebuke them: for
no man can abide it: yea, they will speak against the prophets and
priests whose office it is chiefly to rebuke them.
4:5 1 Yeshall perish all together the one because he would not obey,
and the other, because he would not admonish.
890
5 Therefore shale thou fall in the Iday, and the
Prophet shall fall with thee in the night, and I will
destroy thy 2mother.
6 My people are destroyed ror lack of knowledge:
because Ithou hast refused knowledge, I will also
refuse thee that thou shalt be no Priest to me: and
seeing 2thotl hast forgotten the Law of thy God, I
will also forget thy children.
7 As they were 'increased, so they sinned against
me: therefore will Ichange their glory into shame.
S "They eat up die sins of my people, and lifr up
their minds in their iniquity.
9 And there shall be like people like 'priest: for
Iwill visit their ways upon them, and reward them
their deeds.
10 For they shall eat, and not have enough, they
shall' commit adultery, and shall not increase,because
they have left off to take heed ro rhe Lord.
11 'Whoredom, and wine, and new wine take
away their heart.
12 My 'people ask counsel at their stocks, and
their staff reacherh rhem: for rhe 2spirir of fornica-
tions hath caused them to err, and they have gone a
whoring from under their God.
13 TIley sacrifice upon the tops of the mountains,
and burn incense upon the hills under the oaks, and
the poplar tree, and the elm, because the shadow
thereof is good: therefore yom- daughters shall be
'harlots, and your spouses shall be whores.
14 I will not 'visit your daughters when they are
harlots: nor your spouses, when they are whores:
fur they themselves are separated with harlots, and
sacrifice with whores: therefore (he people that dorh
not understand, shall tall.
1 That is,the Synagogue wherein thou boastest
4:6 1 That is, the Priests shall be cast off, because that for lack of
knowledge, they are not able 1O execute their charge, and instrua
others, Deut, 33:3; Mal. 2:7.
1 Meaning, the whole body of the people, which were weary with
hearing the word of God,
4:7 'The more I was beneficial unto them.
4:8 1 To wit, the Priests seek to eat the peoples offerings, and flatter
them in their sins,
4:9 1 Signifyil1g, that as they have sinned together, so shall they be
punished together.
4:10 1 Showing that their wickedness shall be punished on all sorts:
for though they think by the multitude of wives to have many chil-
dren. yet they shall be deceived of their hope.
4:11 1 In giving themselves to pleasures.they become like brute beasts.
4:12 1 Thus he speilketh by derision in calling them his people. which
now for their sins they were not: for they sought help of stocks and stids,
1 They are carried away with a rage,
4:13 1 Because they take away God's honor, and give it to idols:
therefore he will give them up to their lusts, that they shall dishonor
their own bodies, Rom 1:28.
4:14 1 I will no- correct your shame to bring you to amendment, but
let you run headlong to your own damnation,
Jeff. 109, 1772 WL 11 (Va.Gen.Ct.)

General Court of Virginia.

Robin et al.
v.
Hardaway, et al.
April, 1772.

West Headnotes

KeyCite Citing References for this Headnote

356 Slaves
356k3 k. Who Were Slaves. Most Cited Cases

The act of assembly of 1682, in relation to the sale of Indians as slaves, was repealed by the
act of 1705, and not by those of 1684 or 1691.

**1 These, were several actions of trespass, assault and battery, brought by the plaintiffs
against persons who held them in slavery, to try their titles to freedoms. They were descendants
of Indian women brought into this country by traders, at several times, between the years 1682
and 1748, and by them sold as slaves under an act of Assembly made in 1682. The question
therefore was, when that act was repealed, and whether it ever was?

Mason, for the plaintiffs, first premised an historical state of the several acts of Assembly, which
had been made on the subject of Indians, with their causes and effect.

1662, c. 136. Purvis. 96. The first he took notice of was, an act made in the year 1662, entitled
‘acts concerning the Indians.’ Reciting that the discontents and fears of the English and Indians
proceeded, chiefly, from the wrongs done the Indians by the English, which brought on acts of
revenge, and, in the end, a general disturbance of the peace, and then enacting, among other
things, that the properties of the Indians should be confirmed to them, and their persons so
secured, that whoever should take by fraud or force their goods, or injure their persons, should
make such satisfaction and suffer such punishment, as if the wrong had been done to an
Englishman. And after many other provisions in their favor, it enacts, ‘that what Englishman,
trader, or other, shall bring in any Indians as servants, and shall assign them over to any other,
shall not sell them for slaves, nor for any other time than English of the like ages should serve by
act of Assembly;’ which by the 98th act of the same session, was till twenty-four years of age, if
under sixteen, and if more than sixteen, then five years and no longer. This law he considers
from the nature of its provisions to be, what indeed it calls itself, a treaty of peace made by one
free people with another; and, as proof, that our Assembly then considered themselves as having
no rights over the Indians. Nor does the clause, limiting the time of their servitude, prove the
contrary; for having, by the preceding parts of the act, put them on a footing with Englishmen, as
to other wrongs done their persons or properties, it proceeds in the article of servitude also, to put
them into an equal state.

1665, c. 8. Purv. 134. entitled ‘an act concerning the Indians' takes from the Indians and
lodges in the Governor of Virginia, the power of electing their Warowance, or chief commander.
This was the first act of sovereignty assumed by the Assembly, and the *110 consequence was a
war, which appears to have ensued from the recital of the act of

1666, c. 1. Purv. 140. entitled ‘an act for a cessation,’ which says, the communication
between Virginia and Carolina was cut off by a war with the Indians.

1666, c. 8. entitled ‘an act concerning Indians,’ made at the same session, was never printed,
nor is now to be found in the rolls of the house of Burgesses; but its purport was, to make it death
for any Indian to come into Henrico county, as appears by the act of

**2 1671, c. 5. Purv. 174. entitled ‘an act repealing the act making it death for Indians coming
into Henrico county.’ And though this act does not describe the one it repeals by its date or
chapter, yet Purvis, who complied about the year 1682, when the law of 1666, c. 8. was probably
extant, notes this to have been the law repealed by 1671, c. 5.

1670, c. 12. Purv. 172. ‘an act concerning who shall be slaves.’ The words of it are, ‘whereas
some disputes have arisen whether Indians taken in war by any other nation, and by that nation
that takes them sold to the English, are servants for life or term of years; it is resolved and
enacted, that all servants not being Christians, imported into this country by shipping, shall be
slaves for their life time, but what shall come by land shall serve, if boys and girls, until thirty
years of age, if men and women, twelve years and no longer.’

1675-6, c. 2. entitled ‘an act prohibiting trade with Indians,’ recites that they were then
engaged ‘in a most chargeable and dangerous war’ with the Indians, so that the fire kindled by
the act of 1665, and other acts of usurped power was not yet extinguished. This act of 1675-6, c.
2. was never printed, but is still extant among the rolls of the house of Burgesses.

1676, c. The Indian slaves when taken

********

But this as well as the other laws of that session were made by the command and compulsion
of the rebel Bacon, who obliged the assembly to declare war against the Indians, and to appoint
him general of their forces. All these laws, however, were repealed at the next session by the act
of

1676-7, c. 4. Purv. 198. entitled ‘an act declaring all the acts, orders or proceedings of a grand
Assembly, held at James City in the month of June 1676, void ‘null and repealed.’
 He then produces a *** of the Assembly from their rolls of February 20, 1676-7, who state it
as a reason why they had declined entering into a war with all the Indians, that *111 only about
twenty of them had aggressed, and that it was wrong for the offence of a few to involve whole
nations in war. And the use he makes of these several acts is to shew that the war, to effectuate
which the subsequent acts were made, was unjust on our part; that we were the aggressors, as the
Assembly themselves confess; and have no other excuse for it but the compulsion of Bacon.
During the course of this war was made the act of

1679, c. 1. Purv. 229. entitled ‘an act for the defence of the country against the incursions of
the Indian enemy.’ Which after enacting that every forty titheables should set forth one man and
horse completely armed; that these should form a standing army to proceed on duty, and other
things, has these words; ‘And for the better encouragement, and more orderly government of the
souldiers, that what Indian prisoners or plunders shall be taken in war, shall be free purchase to
the souldier taking the same.’ In justification of this act, perhaps it will be said, the law of nature
allows us to make slaves of captives in war: but that was in the opinion of heathens only.
Grotius, Puffendorf, and all the Christian writers on that subject, say, that to justify such a
measure, the war must have been just; whereas the present one was confessedly not so.

**3 1680, c. 4. Purv. 257. ‘An act for continuation of the several fortifications and garrisons
at the heads of the four great rivers,’ repeals a part of the act of 1679, to wit, the clause directing
that every forty titheables should set forth a soldier, and the number of soldiers to twenty for
every fort.

1682, c. 1. Purv. 282. ‘An act to repeal a former law, making Indians and others free,’ is the
law on which the defendants rely for their title. It recites and repeals the act of 1670, which made
temporary servants only of Indians taken in war by other Indians, our neighbors and
confederates, as this act calls them, and sold to the English; and then enacts that ‘all servants
except Turks and Moors, whilst in amity with his Majesty, which from and after the publication
of this act, shall be brought or imported into this country, either by sea or land, whether Negroes,
Moors, Mulattoes, or Indians, who, and whose parents and native country were not Christians, at
the time of the first purchase of such servants by some Christian, although afterwards and before
such their importation and bringing into this country, they shall be converted to the Chrsitian
faith, and all Indians which shall hereafter be sold by our neighboring Indians, or any other
trafficking with us and for slaves, are hereby adjudged, deemed and taken, and shall be adjudged,
deemed and taken to be slaves.’ This act by making slaves of the Indians taken in war, and sold
by our friendly Indians, who *112 by the act of 1670, were only temporary servants, put such
friendly Indians, as to their captures, on a footing with our own soldiers, whose captives were
slaves by the act of 1679.

1682, c. 7. ‘An act for disbanding the present souldiers in garrison in the forts at the heads of
the several rivers?? as also for the raising of other forces in their stead,’ repeals the act of 1680;
recites that there was now a peace with some of the Indians, and therefore reduces the number of
forces, but shews the war continued as to others, by keeping up a part of the forces, and directing
their proceedings on the approach of the enemy.
 1684, c. 7. Rolls of house of Burgesses. ‘An act for the better defence of the country,’
expressly repeals the acts of 1679, 1680, and 1682, c. 7, provides other troops for protecting the
frontiers, and re-enacts nothing derogatory of the rights of freedom. Then comes the act of

1686, c. 9. Rolls of the house of Burgesses. ‘An act repealing the seventh act of Assembly
made at James City, the 16th day of April, 1684.’ Which after repealing the said act, enacts that
‘the souldiers settled by the said law at the heads of the four great rivers shall be disbanded,’ and
says no more. So that while it takes away the repealing act of 1684, it shews it does not intend to
re-establish the acts of 1679, 1680, and 1682, c. 7. by re-enacting matter contradictory to them.
Consequently that clause of the act of 1679, which made “the Indians taken in war, free purchase
to the souldiers taking the same,' was still under repeal. Indeed it could not be otherwise, because
there being now no soldiers to take them, no Indians could come within the description.

**4 1691, c, 9. Rolls of the house of Burgesses. ‘An act for a free trade with Indians.’ This
enacts ‘that all former clauses of former acts of Assembly, limiting, restraining, and prohibiting
trade with Indians be, and stand hereby repealed, and they are hereby repealed; and that from
henceforth there be a free and open trade for all persons, at all times, and at all places, with all
Indians whatsoever.’

1705, c. 49. Collection of law in 1733, p. 218. ‘An act concerning servants and slaves,’ enacts
‘that all servantsFN* imported *113 and brought into this country by sea or land, who were not
Christians in their native country, (except Turks and Moors in amity with her Majesty, and others
that can make due proof of their being free in England, or any other Christian country, before
they were shipped, in order to transportation hither) shall be accounted and be slaves, and as
such, be here bought and sold, notwithstanding a conversion to Christianity afterwards.’ And it
repeals all other acts so far ‘as they relate to servants and slaves, or to any matter or thing
whatsoever, within the purview of this act.’

FN* The act of 1748, c. 14. Revisal of 1748, pa. 285. instead of the words ‘all servants
imported,’ substitutes ‘all persons who have been or shall be imported;’ an alteration of few
words indeed, but of most extensive barbarity. It has subjected to slavery the free inhabitants of
the two continents of Asia and Africa (except of the small parts of them inhabited by Turks and
Moors in amity with England) and also the Aborigines of North and South America, unless
Mason's observation on the word ‘ ‘shipped,’ shall be thought to avail them. It even makes slaves
of the Jews who shall come from those countries, on whose religion ours is engrafted and so far
as it goes, supposes it to be founded on perfect verity. Nay, it extends not only to such of those
persons as should come here after the act, but also to those who had come before, and might then
be living here in a state of freedom.—Edition 1829
Having thus premised the several acts of Assembly, so far as they threw light on this subject,
or on one another, he observed, that but four of them have imposed servitude or slavery on
Indians; to wit,

1662, which makes temporary servants of those brought in as servants by Traders. This was
never repealed till 1705.
 1670, which makes temporary servants of those taken in war by our friendly Indians. This
was expressly repealed by the act of 1682, c. 1.

1679, which makes slaves of those taken in war by our soldiers. This was expressly repealed
by the act of 1684. And

1682, c. 1. which made slaves of all Indian servants imported by sea or land, and of all
Indians sold as slaves by other Indians trafficking with us. This is the act on which the
defendants rely, supposing it to have been in force when the ancestors of the plaintiffs were
brought into this country. But on the contrary he proposed to prove,

**5 I. That it was originally void in itself, because it was contrary to natural right.

II. That it was virtually repealed by the act of 1684. If not, yet,

III. It was virtually repealed by the act of 1691. And if by neither of these, then,

IV. It was actually repealed in 1705.

I. He observed that we came to this new world, not called by the invitations, nor provoked by
the injuries of its inhabitants. That by force we dispossessed them of the wilds they had inhabited
from the creation of the world; which was carrying far enough our violation of their rights. That
we did not therefore pretend, in the general, to reduce their persons under our dominion. Of some
of them indeed we accepted the subjection; but this was a civil union of the one state with the
other, not a domestic and *114 servile submission of individuals to individuals. Accordingly, the
freedom of the confederate or united states was secured by solemn treaties. This is the case of
our tributary and friendly Indians, whose liberty could not be invaded by any act of Assembly,
without committing so fundamental a violation of these treaties, as would dissolve the union or
confederacy, and restore them again to their natural Independence. As little could the wars we
waged against others of them, justify the reducing the captives to slavery. Because all such wars,
whether we or they commenced hostilities, were just on their part, entered into pro aris et focis,
to defend from the invasion and encroachments of hostile strangers, that native soil in which the
God who made had planted their fathers, and said to them, ‘over this thou shalt have
dominion.'FN* So that if we apply these acts of our legislature to the captives from hostile tribes
of Indians, they cannot be justified on the rights of war; if to those in amity with us, they are
infractions of the federal as well as natural rights of those people. No instance can be produced
where even heathens have imposed slavery on a free people, in peace with them. The Indians of
every denomination were free, and independent of us; they were not subject to our empire; not
represented in our legislature; they derived no protection from our laws, nor could be subjected
to their bonds. If natural right, independence, defect of representation, and disavowal of
protection, are not sufficient to keep them from the coercion of our laws, on what other
principles can we justify our opposition to some late acts of power exercised over us by the
British legislature? Yet they only pretended to impose on us a paltry tax in money; we on our
free neighbors, the yoke of perpetual slavery. Now all acts of legislature apparently contrary to
natural right and justice, are, in our laws, and must be in the nature of things, considered as void.
The laws of nature are the laws of God; whose authority can be superseded by no power on
earth. A legislature must not obstruct our obedience to him from whose punishments they cannot
protect us. All human constitutions which contradict his laws, we are in conscience bound to
disobey. Such have been the adjudications of our courts of justice. And cited 8 Co. 118. a.
Bonham's case. Hob. 87; 7 Co. 14. a. Calvin's case. And so he concluded the act of 1782,
originally void, because contrary to natural right and justice.

FN* Gen. 1. 28.—Edition 1829.

**6 II. But if this law had possessed any original validity, it would have been repealed, or,
which is the same in effect, rendered useless by the act of 1684. The describing words of the act
of *115 1682, are, ‘servants hereafter brought or imported by sea or land, whether Negroes,
Moors, Mulattoes, or Indians, and all Indians which shall hereafter be sold by our neighbor
Indians, or any other trafficking with us, as and for slaves.’ To come within this description,
then, they must be servants at the time they are imported or sold by our neighboring Indians as
slaves. Now servants they could not be in their own country, for it is notorious there is no such
thing as servitude known among any of the Indian tribes. Even their captives in war, they either
adopt into their families to supply the place and represent the person of some relation lost in the
war, or make them free members of their country, or kill them. As little could they be servants
among our southern neighbors of Carolina; for till the year 1715, they had no slave law there, nor
yet in Maryland.

And since they could come to us no other way, it is plain they could not be servants at the
time of their coming. Nor must it be supposed the legislature, by the other of the alternative
descriptions, ‘sold as slaves,’ intended to create a servitude which did not exist before; for by
these words they mean to include only those who may be legally so sold. We cannot suppose
they intended to give their sanction to the sale of an Indian as a slave, whom the person selling
had no authority so to sell. It was a daring act of injustice, worse than murder, in the vendor; can
we believe the legislature meant to become his accomplices? The question then is, who were
those Indians who might be legally sold as slaves? For they are the persons whose slavery is
confirmed by this act. The answer is, Those who were or should be taken under the act of
FN*
1679, the only act which had given any person authority to sell Indians as slaves, and
therefore the only sales the act of 1682 meant to confirm. If there be any doubt of this, the
preamble of 1682, will confirm it. It consists of three members; the 1st. recites the act of 1670;
the 2nd. shews in what manner it bore on the *116 purchasers of Negroes, Moors and Mulattoes;
the 3rd. member of the preamble shews how it affected the purchasers of the Indians described in
the same act 1679, and then goes on to enact. So that the preamble proposes the subject of the
act, to wit, Negroes, Moors, Mulattoes, and the Indians of FNd1679, and does therefore restrain
the generality of the enacting clause, if the expressions of that should be thought to take in any
others. This construction of the act is well grounded and just, whereas any other would be most
unjust: and it is a rule in law that wherever an act or statute will bear two constructions, the one
of which is just, the other unjust, the former is to be adopted. If then none were continued in
slavery by this act of 1682, but those who might be made slaves by that of 1679, the repeal of
1679, by the act of 1684, was in effect a repeal of that of 1682, because it took away the subject
matter on which it was to work. Before 1682, no Indian could be legally sold as a slave, unless
under the act of 1679. The sales under that act, then, were the only ones confirmed by the act of
1682. Consequently when those sales are put down, the act of 1682, becomes of no use, unless to
confirm those made before the repeal. Or, still to vary its point of view, 1679 was the basis of
1682. When that was demolished, the superstructure fell of course. Accordingly, it is notorious
that it was the universal opinion in this country, that the law of 1682, was repealed in 1684. Both
bench and bar were in possession of that belief; the latter advising, the former adjudging the law
to be so, and under that persuasion hundreds of the descendants of Indians have obtained their
freedom, on actions brought in this court. Nor was ever the propriety of these decisions called
into question till within these four years. The gentleman (Colonel Bland) who is now of counsel
on the other side, started the doubt at the bar, on no other foundation, as I conceive, than the
want of an express repeal. But it is hoped the virtual repeal will answer the same end, and that
we shall again be permitted to return into our wonted channel of adjudication.

FN* It seems however, clear, this act intended to take in as well those described in the act of
1670, to wit, ‘Indians taken and sold by our friendly Indians,’ as those of the act of 1679, who
were the captives of our own soldiers. Or else the act of 1682, would have done nothing; for
those under 1679, were slaves without it. However, it is as plain, that while the former branch of
the description applies to those only who were servants before their coming here, the latter is
confined to those who were servants under the act of 1670, whom it makes slaves instead of
servants. So that the Indians brought in by our traders, and sold as servants under the act of 1662,
are still out of that of 1682, whose basis is purely those of 1670 and 1679; or their state after
1684, may be thus expressed. The act of 1662, had never been touched. That of 1670, had indeed
been demolished by that of 1682, but a new edifice raised on its ruins. That of 1679, was
expressly repealed by that of 1684.—Edition 1829.
FNd These arguments are so contradictory, that I can hardly suppose the plaintiff's counsel so
used them: yet do my notes, taken while he was speaking, confirm them in so many places, that I
can as little suppose the error in myself.—Edition 1829.
**7 III. But if it was not repealed by the act of 1684, then it was by the act of 1691, which
repealed ‘all former clauses of former acts of Assembly, limiting, restraining, and prohibiting
trade with Indians.’ By this it was made lawful for the Indians to come into this country, at any
time, for the purpose of trade. But can we suppose, that as soon as they came, they should be
picked up and sold as slaves? If so, this fair faced act was but a trap to catch *117 them, an
imputation which would do indignity to any legislature. It is a rule that ‘when any power is given
by any act or statute, all incidents necessary to the making it effectual, are also given.’ Thus the
statute of Glocester, c. 5. giving him in reversion an action of waste against his tenant for life or
years, has been deemed to give him authority to enter into the houses or lands letten, to see if any
waste be done, without his being subject to an action of trespass for such entry. 2 Inst. 306. This
operates then so far as an implied repeal or alteration of the common law, which had given the
tenant a right to bring such an action. So in our case, when a law gives right to the Indians to
come into our country to trade, it gives them all incidents necessary to the exercise of that right,
as protection of their persons, properties, &c. and consequently takes from every other the right
of making them slaves, and so far implies a repeal of the law of 1682. If, contrary to this rule,
that law continued still in force, the Indians could not come to trade with us, and so the new law
would not produce its effect of opening a free trade with them. These two acts then being
contradictory, which is to prevail? The latter surely. Under the words of the act of 1691, the
question may be shortly asked, whether that of 1682, which subjected Indians to slavery as soon
as they entered this country, restrained their trade or not? If it did, it was repealed by this of
1691, which said that ‘all former acts restraining their trade should be repealed.’
 IV. He proceeded to shew it was repealed in 1075, if it was then subsisting. FN*

FN* Here, he says, there was a committee then appointed, to revise and reduce into one body all
the laws then in force; and an act to repeal all such as were not in that revisal, of which the law
of 1682, was one. This appointment was by the acts 1699, c. 8. 1700, c. 3. The former has no
such repealing clause. The latter I have never seen.—Edition 1829.
The act of 1705, c. 49. describes the persons who are thenceforth to be considered as slaves.
But two of the marks or characters there required, do not apply to any Indians. For first, they are
not servants, that condition of life being unknown to them, as I have before observed; nor were
they ever shipped; whereas the same act describes only such persons as could not make proof of
their being free in some Christian country before they were shipped for transportation hither;
plainly designing such foreign infidels only as are brought hither by sea, and not the free
Aborigines of this continent, whose rights we had sufficiently violated when we took from them
their lands, without adding further aggravation by enslaving their persons. The act having
described who should *118 be slaves, repeals ‘all other acts, so far as they relate to servants and
slaves.’ So that if the act of 1682, related to servants and slaves, it was hereby repealed.

Colonel Bland, for the defendants.

**8 I. He insisted that the law of 1682, was not void in itself. That societies of men could not
subsist unless there were a subordination of one to another, and that from the highest to the
lowest degree. That this was comformable with the general scheme of the Creator, observable in
other parts of his great work, where no chasm was to be discovered, but the several links run
imperceptibly into one another. That in this subordination the department of slaves must be filled
by some, or there would be a defect in the scale of order. That, accordingly, Puffendorf, b. 6. c.
3. a. 10. proves it to be founded on the law of nature. In the earlier stages of social confederacies,
we find this connection between master and servant established. If this had been contrary to the
law of nature, it could never have been tolerated under the Jewish theocracy. Yet that it was so
tolerated, Holy writ affords us ample testimony. In fact there is no great difference between
slavery in its absolute state, and that species of it called villeinage, known to our common law.
This too, derived its origin from the rights of war, the ancestors of the villeins having been
originally captives in war. So that this is a plain recognition of that right by our municipal law,
under which, therefore, as well as under the law natural, the captor may hold his prize. The laws
of 1679 and 1682, particularly, so much complained of, were founded on principles of self-
defence, and may be considered as proofs of the humanity of our ancestors, who substituted this
punishment on the Indian captives, instead of those cruel deaths they inflicted on ours. But
certain it is, they are much less unjust than the laws making slaves of negroes, inhabitants of
Africa. They can never injure our properties or disturb our peace: Indians, were perpetually
invading both. Yet is no objection made to the validity of the negro laws on account of their
injustice, by the counsel on the other side. But he denied that these laws, if they were
contradictory to natural justice, could therefore be disregarded by a court of law, and cited 1 Bl.
91. to prove that ‘if we could conceive it possible for the Parliament to enact a thing to be done
which is unreasonable, there is no court that has power to defeat the intent of the legislature,
when couched in such evident and express words, as leave no doubt whether it was the intent of
the legislature or no.’
 II. He denied that the act of 1682, was repealed by that of 1684. He observed that the one of
1679, was not the sole ground of this, but that the act of 1670, was its principal foundation. This
*119 was our first slave law, and bore on its face so glaring an absurdity, to wit, the making
slaves of those infidels who came by sea, and only temporary servants of those who came by
land, that it was thought to affect the reputation of the legislature, and was therefore repealed by
the act of 1682; which put them all on a footing. But he said, that before either of the laws of
1670 or 1679, great numbers of Indian captives were held in slavery, every man thinking himself
entitled, under the law of nature, to his captives in war. That these, therefore, as well as those
under the laws of 1670 and 1679, afforded matter for the operation of the act of 1682. That also
long before this,FN* negroes had been brought into this country and were held as slaves by the
persons who had purchased them. There was indeed a set of negroes after the year 1679, who,
having been brought in by land, were under the law of that date but temporary servants, and
these are the subject of one of the main branches of the act of 1682; so that when the act of 1684,
repealed that of 1679, it took away only one of the many foundations of 1682. There still
remained subject to its operation, 1. The Indians taken in war before the year 1670, and held by
the captors in slavery, under the law of nature. 2. Negroes brought in and sold as slaves before
that time. 3. Indians and negroes brought in by land after 1670, and under that act held in
temporary servitude. On all these the act of 1682, continued to operate, so that in fact none were
withdrawn from its power but the few described by the act of 1679, to wit, those who might
thereafter be taken in war by our own soldiers, whenever we should have soldiers.

FN* The first negroes brought into this country were in the year 1619, about the last of August,
when a Dutch man of war came in and sold twenty to the settlement. Smith's history of Virginia,
126, note. There was no separate property in lands or labor at that time, but all worked together
for the common good, and consequently the right to these negroes was common; or perhaps they
lived on a footing with the whites, who, as well as themselves, were under the absolute direction
of the president. Beverley and Stith. 182. who takes this on his authority, states the arrival of
these negroes in 1620. But Smith is most to be credited, as he had it from the relation of John
Rolfe, a member of the council, and our first secretary, who was on the spot. In 1625, another
negro called Brass, was taken in at the West Indies, by one Captain Jones, to assist in working
his vessel hither. I find an order of the General court of October 3, 1625, that he shall ‘belong to
Sir Francis Wyatt, then governor, as his servant, notwithstanding any sale by captain Jones, on
any challenge by the ship's company.’ Rot. N. 1. fo. 85. 96. I suppose this order was made on
some litigation of the property in the said negro.—Edition 1829.
**9 III. That the law of 1691, was no repeal of that of 1682. To prove this, he said, the acts of
assembly which have been cited on the other side may be distinguished into two classes, totally
independent of, and unconnected with one another, to wit, those relative to slavery, and those
relative to trade. And he enumerated *120 and arranged them under these heads: and first of
those relative to slavery.

1662, makes temporary servants of Indians brought in by our traders. But this act extended
only to friendly not to hostile Indians, as appears by the clause directing such Englishmen as live
in their neighborhood to assist them in their fencing. This act is distinguished from all others by
this circumstance, that it relates to friendly Indians, and puts them on a footing with servants of
other nations; whereas all the other acts relate to hostile tribes, of whom therefore they make
slaves. Of the latter class, were the ancestors of the people now before the court.
 1665, 1666, c. 1. c. 8. 1671, c. 5. do not concern either trade or slavery, nor can they throw
any light on the present subject. The first empowers the Governor to appoint the Werowance, but
this could not have brought on the war which followed. It is the custom to this day for the
Governor to make such appointment. The second relates to the making of tobacco; the third and
fourth to the carrying on our war with the enemy.

1670. This was the first establishment of slavery by any express act of the legislature. This
law is related to that of 1662, as enlarging the field of servitude. That had made temporary
servants of Indian friends brought in by our traders; this does the same as to the captives in war
made by our Indian friends, and as to negro servants brought in by land, and makes slaves of
those imported from beyond sea.

1677. He produces a treaty of peace made with the Indians, by the fifteenth clause of which, it
is provided, that no Indian in amity with us, shall be sold as a servant for any longer time than
English servants are bound to serve by act of Assembly, and that they shall not be slaves at all.
Which treaty is signed by the chiefs of about ten nations, all of whom appear by their names to
be our neighbors. This explains the laws of that period, and shews they were not meant to extend
to our neighboring and friendly Indians.

1679, makes slaves of Indian prisoners taken by our own soldiers, and so still extends the
circle of slavery; but not so as to take in our friendly Indians in violation of the treaty before
mentioned.

1682, c. 1. is the great law now in question, and is made solely on the subject of slavery. This
repeals the law of 1670, on account of its absurdity, and removes the groundless distinction
between servants coming in by land and those coming by sea. But still it affects only the hostile
tribes of Indians.

He then proceeded to the acts of the second class, to wit, those made to regulate our trade
with the Indians.

*121 1662, c. 114. Purv. 83. entitled ‘free trade.’ This act was not cited on the other side. It
repeals all former laws restraining trade with the Indians, lays it open to every person for every
article except for beaver, otter, or other furs. Till this act was made, none but the person called
the “Cape Merchant' could trade with the Indians.

**10 1667, c. 3. Purv. 217. ‘An act licensing trading with Indians,’ is another act on the
subject of trade.

1680, c. 8. Purv. 270. ‘An act licensing a free trade with Indians' almost verbatim the sameFN*
with the act of 1691, relied on by the plaintiffs.

FN* There is a remarkable difference occasioned by the alteration of a single word. This act
says, there shall be a free trade with our ‘friendly’ Indians; that of 1691, with ‘all’ Indians.
Applying this to Colonel Bland's observation, it should seem to favor the plaintiffs. The act of
1670 and 1679, he said, related to hostile Indians alone. Therefore, in 1680, the legislature, that
their act opening a trade might not repeal these laws, expressly give the license of coming to
trade to ‘friendly’ Indians only. But in 1691, when a general peace was now established, they
extend their license to ‘all’ Indians, because they meant that all should be now on a footing.—
Edition 1829.
1691. This act comes next, and comes properly after these. It has no relation to those made on
the subject of slavery, it was not made by any eye to them, and should not, therefore, have any
effect on them. If the legislature had meant by this to repeal the act of 1682, they would have
done it in express terms, and not merely by a side wind, the effect of which they must have
foreseen would at least occasion dispute.

IV. The act of 1705, does indeed repeal that of 1682, but it re-enacts very nearly the same
matter. Compare them together.

1682. All 1705. All

servants servants
brought or imported and
imported brought into
into this this country
country by by sea or
sea or land.
land.
Whether
Negroes,
Mcors,
Mulattoes
or Indians.
Who and Who were
whose not
parents Christians in
and native their native
country country.
were not
Christians,
at the time
of the first
purchase
of such
servants
by some
Christian.
Except Except Turks
Turks and and Moors in
Moors, amity with
whilst in her majesty.
amity with
his
majesty.
And others
that can make
due proof of
their being
free in a
Christian
country,
before they
were shipped
in order to
transportation
hither.
And all
Indians
which
shall
hereafter
be sold by
our
neighbor
Indians, or
any other
trafficking
with us, as
and for
slaves.
Shall be Shall be
slaves. slaves.

The only difference is that the act of 1705, omits the clause which speaks particularly of
Indians sold to us as slaves by our neighbor or other Indians. But this clause was tautologous in
the act of 1682; the former words having been sufficient to comprehend them in that, as the
words answering to them, are in this act. They are imported by land, and were not Christians in
their native country, which are the material characters of the act of 1705. So that the plaintiffs get
little by this repeal, when the same matter is instantaneously re-enacted.

Mason, in reply, denied that Puffendorff justified slavery on the principles of natural law.
That on the contrary, b. 6. c. 3. a. 2. 4. 5. he proves it to have no foundation in nature, but to be
derived from contract alone. That if the Israelitish practice was a proof of the morality of any act,
we might under that, indulge ourselves with a plurality of wives, this being agreeable to the laws
of the Jewish theocracy; so that this proof by doing too much, does nothing at all. That as to the
difference between slavery and death, in point of humanity, he thought that those savages
shewed infinitely the most, in adopting the latter rather than the former, inasmuch as no life at all
is preferable to a painful one. That as to the objection drawn from the superior injustice done the
Africans, by the laws imposing slavery on them, though he would not undertake to justify them,
yet he conceived them less unjust than those now in question. For the Africans are absolute
slaves in their own country, none but the King being a freeman there. So that the act of Assembly
only continued a slavery which existed before, whereas, as to the Indians, the slavery is created
by the acts.

**11 That as to the express repeal of the act of 1682, which might have been made if intended
in 1691, it would have been improper, as is shewn on the other side, as it would have discharged
negroes from slavery, which was not intended. Therefore the virtual repeal answered their
purpose better, because it acted partially.

And lastly, that the act of 1705 does indeed describe servants brought in by land as well as by
sea, but another part of the description is, that they shall have been shipped. This then explains
what is meant by ‘servants brought in by land,’ to wit, such as having been transported by
shipping to our neighboring colonies, *123 are afterwards brought here by land, of which there
were formerly great numbers.

The court adjudged that neither of the acts of 1684 or 1691, repealed that of 1682, but that it
was repealed by the act of 1705.

Va.Gen. 1772.
Robin et al. v. Hardaway, et al.
Jeff. 109, 1772 WL 11 (Va.Gen.Ct.)

END OF DOCUMENT
Delegates to the Constitutional Convention: George Mason

Home > Constitutional Convention > Delegates > George Mason

George Mason
State: Virginia

Age at Convention: 62

Date of Birth: December 11,1725

Date of Death: October 7, 1792

Schooling: Personal tutors

Occupation: Planter and Slave Holder, Lending and Investments, Real Estate Land
Speculation, Public Security Investments, Land owner

Prior Political Experience: Author of Virginia Bill of Rights, State Lower House of
Virginia 1776-1780, 1786-1787, Virginia State Constitutional Convention 1776

Committee Assignments: First Committee of Representation, Committee of

Assumption of State Debts, Committee of Trade, Chairman Committee of Economy,
Frugality, and Manufactures

Convention Contributions: Arrived May 25 and was present through the signing of the Constitution, however he
did not sign the Constitution. Initially Mason advocated a stronger central government but withdrew his support
toward the end of the deliberations. He argued that the Constitution inadequately represented the interests of the
people and the States and that the new government will "produce a monarchy, or a corrupt, tyrannical
aristocracy." William Pierce stated that "he is able and convincing in debate, steady and firm in his principles, and
undoubtedly one of the best politicians in America." He kept notes of the debates at the Convention.

New Government Participation: He attended the ratification convention of Virginia where he opposed the
ratification of the Constitution. Did not serve in the new Federal Government.

Biography from the National Archives: In 1725 George Mason was born to George and Ann Thomson Mason.
When the boy was 10 years old his father died, and young George's upbringing was left in the care of his uncle,
John Mercer. The future jurist's education was profoundly shaped by the contents of his uncle's 1500-volume
library, one-third of which concerned the law.

Mason established himself as an important figure in his community.

As owner of Gunston Hall he was one of the richest planters in
Virginia. In 1750 he married Anne Eilbeck, and in 23 years of
marriage they had five sons and four daughters. In 1752 he
acquired an interest in the Ohio Company, an organization that
speculated in western lands. When the crown revoked the
company's rights in 1773, Mason, the company's treasurer, wrote his
first major state paper, Extracts from the Virginia Charters, with
Some Remarks upon Them.

During these years Mason also pursued his political interests. He was
a justice of the Fairfax County court, and between 1754 and 1779
Mason was a trustee of the city of Alexandria. In 1759 he was
elected to the Virginia House of Burgesses. When the Stamp Act of
1765 aroused outrage in the colonies, George Mason wrote an open
letter explaining the colonists' position to a committee of London
merchants to enlist their support.

In 1774 Mason again was in the forefront of political events when he assisted in drawing up the Fairfax Resolves, a
document that outlined the colonists' constitutional grounds for their objections to the Boston Port Act. Virginia's
Declaration of Rights, framed by Mason in 1776, was widely copied in other colonies, served as a model for
Jefferson in the first part of the Declaration of Independence, and was the basis for the federal Constitution's Bill

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Delegates to the Constitutional Convention: George Mason

of Rights.

The years between 1776 and 1780 were filled with great legislative activity. The establishment of a government
independent of Great Britain required the abilities of persons such as George Mason. He supported the
disestablishment of the church and was active in the organization of military affairs, especially in the West. The
influence of his early work, Extracts from the Virginia Charters, is seen in the 1783 peace treaty with Great
Britain, which fixed the Anglo-American boundary at the Great Lakes instead of the Ohio River. After
independence, Mason drew up the plan for Virginia's cession of its western lands to the United States.

By the early 1780s, however, Mason grew disgusted with the conduct of public affairs and retired. He married his
second wife, Sarah Brent, in 1780. In 1785 he attended the Mount Vernon meeting that was a prelude to the
Annapolis convention of 1786, but, though appointed, he did not go to Annapolis.

At Philadelphia in 1787 Mason was one of the five most frequent speakers at the Constitutional Convention. He
exerted great influence, but during the last two weeks of the convention he decided not to sign the document.

Mason's refusal prompts some surprise, especially since his name is so closely linked with constitutionalism. He
explained his reasons at length, citing the absence of a declaration of rights as his primary concern. He then
discussed the provisions of the Constitution point by point, beginning with the House of Representatives. The
House he criticized as not truly representative of the nation, the Senate as too powerful. He also claimed that the
power of the federal judiciary would destroy the state judiciaries, render justice unattainable, and enable the rich
to oppress and ruin the poor. These fears led Mason to conclude that the new government was destined to either
become a monarchy or fall into the hands of a corrupt, oppressive aristocracy.

Two of Mason's greatest concerns were incorporated into the Constitution. The Bill of Rights answered his primary
objection, and the 11th amendment addressed his call for strictures on the judiciary.

Throughout his career Mason was guided by his belief in the rule of reason and in the centrality of the natural
rights of man. He approached problems coolly, rationally, and impersonally. In recognition of his accomplishments
and dedication to the principles of the Age of Reason, Mason has been called the American manifestation of the
Enlightenment. Mason died on October 7, 1792, and was buried on the grounds of Gunston Hall.

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Delegates to the Constitutional Convention: George Mason

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GEORGE MASON & HISTORIC HUMAN RIGHTS DOCUMENTS

George Mason's Objections to the Constitution

In September 1787, during the final days of the Constitutional Convention, George Mason wrote the reasons
for his refusal to sign the Consitution on the back of a Committee of Style report. Manuscript copies of this
document were circulated and Mason sent copies to various individuals, including George Washington. On
November 22, the objections were printed in the Virginia Journal at the behest of Washington's secretary
Tobias Lear in order that he could publicly refute them. The original manuscript is in the Chapin Library at
Williams College.

Objections to This Constitution of Government

There is no Declaration of Rights, and the laws of the general government being paramount to the laws and
constitution of the several States, the Declarations of Rights in the separate States are no security. Nor are
the people secured even in the enjoyment of the benefit of the common law.

In the House of Representatives there is not the substance but the shadow only of representation; which can
never produce proper information in the legislature, or inspire conficence in the people; the laws will
therefore be generally made by men little concerned in, and unacquainted with their effects and
consequences.

The Senate have the power of altering all money bills, and of originating appropriations of money, and the
salaries of the officers of their own appointment, in conjunction with the president of the United States,
although they are not the representatives of the people or amenable to them.

These with their other great powers, viz.: their power in the appointment of ambassadors and all public
officers, in making treaties, and in trying all impeachments, their influence upon and connection with the
supreme Executive from these causes, their duration of office and their being a constantly existing body,
almost continually sitting, joined with their being one complete branch of the legislature, will destroy any
balance in the government, and enable them to accomplish what usurpations they please upon the rights and
liberties of the people.

The Judiciary of the United States is so constructed and extended, as to absorb and destroy the judiciaries of
the several States; thereby rendering law as tedious, intricate and expensive, and justice as unattainable, by
a great part of the community, as in England, and enabling the rich to oppress and ruin the poor.

The President of the United States has no Constitutional Council, a thing unknown in any safe and regular
government. He will therefore be unsupported by proper information and advice, and will generally be directed
by minions and favorites; or he will become a tool to the Senate --or a Council of State will grow out of the
principal officers of the great departments; the worst and most dangerous of all ingredients for such a Council
in a free country; From this fatal defect has arisen the improper power of the Senate in the appointment of
public officers, and the alarming dependence and connection between that branch of the legislature and the
supreme Executive.
   
Hence also spuring that unnecessary officer the Vice - President, who for want of other employment is made
president of the Senate, thereby dangerously blending the executive and legislative powers, besides always
giving to some one of the States an unnecessary and unjust pre -eminence over the others.

The President of the United States has the unrestrained power of granting pardons for treason, which may be
sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime,
and thereby prevent a discovery of his own guilt.

By declaring all treaties supreme laws of the land, the Executive and the Senate have, in many cases, an
exclusive power of legislation; which might have been avoided by proper distinctions with respect to treaties,
and requiring the assent of the House of Representatives, where it could be done with safety.

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GEORGE MASON & HISTORIC HUMAN RIGHTS DOCUMENTS

By requiring only a majority to make all commercial and navigation laws, the five Southern States, whose
produce and circumstances are totally different from that of the eight Northern and Eastern States, may be
ruined, for such rigid and premature regulations may be made as will enable the merchants of the Northern
and Eastern States not only to demand an exhorbitant freight, but to monopolize the purchase of the
commodities at their own price, for many years, to the great injury of the landed interest, and impoverishment
of the people; and the danger is the greater as the gain on one side will be in proportion to the loss on the
other. Whereas requiring two -thirds of the members present in both Houses would have produced mutual
moderation, promoted the general interest, and removed an insuperable objection to the adoption of this
government.

Under their own construction of the general clause, at the end of the enumerated powers, the Congress may
grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and
extend their powers as far as they shall think proper; so that the State legislatures have no security for the
powers now presumed to remain to them, or the people for their rights.

There is no declaration of any kind, for preserving the liberty of the press, or the trial by jury in civil causes;
nor against the danger of standing armies in time of peace.

The State legislatures are restrained from laying export duties on their own produce.

Both the general legislature and the State legislature are expressly prohibited making ex post facto laws;
though there never was nor can be a legislature but must and will make such laws, when necessity and the
public safety require them; which will hereafter be a breach of all the constitutions in the Union, and afford
precedents for other innovations.

This government will set out a moderate aristocracy: it is at present impossible to foresee whether it will, in
its operation, produce a monarchy, or a corrupt, tyrannical aristocracy; it will most probably vibrate some
years between the two, and then terminate in the one or the other.

The general legislature is restrained from prohibiting the further importation of slaves for twenty odd years;
though such importations render the United States weaker, more vulnerable, and less capable of defence.

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George Mason's "Objections" and the Bill of
Rights
Robert A. Rutland, University of Tulsa

In 1787 George Mason was a political figure to be reckoned with,

spoken of in the same breath with Virginians Washington, ABOUT THE
Jefferson, Madison, Patrick Henry, and Richard Henry Lee. He was, AUTHOR
as they said then, "a man of parts"; Jefferson described him as "of Robert A. Rutland, is
the first order of greatness." The chief author of the Virginia former editor of the Papers
Declaration of Rights in 1776, Mason had been either a legislator of James Madison and is
or a confidant in the Revolutionary councils of the Old Dominion research professor of
from 1774 onward. Now, from May to September in 1787, Mason history at the University of
was a key member of his state's delegation at the Federal Tulsa.
Convention, a frequent and persuasive speaker, and the man who
played a vital role in such matters as presidential impeachment and fiscal responsibility.

But Mason did not approve of the outcome of the Constitutional Convention. He made
significant last minute motions on the convention floor, and one which his colleagues rejected
returned to haunt them: Mason belatedly called for the addition of a bill of rights to the
Constitution. Mason's call was shaped into a motion by Elbridge Gerry. They must have
witnessed the roll call of states with chagrin as the resolution "to prepare a Bill of Rights" was
defeated unanimously.

Then and later the Federalists were short-tempered when the subject of a bill of rights arose.
Delegate Robert Sherman was their spokesman when he helped derail Mason's motion. Stating
that he too was "for securing the rights of the people where requisite," Sherman continued,
that "the State Declarations of Rights are not repealed by this Constitution; and being in force
are sufficient." Moreover, Sherman contended, "the Legislature may be safely trusted." James
Madison sided with Sherman and five days later, thirty-nine of Mason's col leagues (one by
proxy) signed the Constitution. Mason, Gerry, and Edmund Randolph (who also declined to
sign), watched the convention approve the Constitution, according to Dr. Franklin's motion,
"by the unanimous consent of the States present."

Franklin's tactic placed the trio of naysayers on the defensive, an awkward position for one like
Mason who had been so hopeful at the start of the enterprise. Mason had come to Philadelphia
that spring convinced that "the Eyes of the United States are turn'd upon this Assembly, &
their Expectations raised to a very anxious Degree." "May God grant we may be able to gratify
them," Mason prayed in June 1787. Along with James Wilson and James Madison, Mason had
engaged articulately in debates on behalf of enlarging participation. Mason's arguments for
popular election of the lower house in Congress, his insistence on the right to impeach a
corrupt president, and his approval of presidential elections by a direct vote of the citizenry all
fitted his philosophical commitment to a broad-based republic. A slave owner and man of
means, Mason had also denounced the slave trade.

At the same time, Mason sought to keep the Union from swallowing the states, and thus he
supported selection of senators by the state legislatures and vowed "he never would agree to
abolish the State governments. or render them absolutely insignificant." Mason also
adamantly sought protection for southern shipping interests in the form of a two-thirds
majority for commercial legislation. Within his own guidelines, Mason steadily argued for a
government that trusted the people over the privileged. Fellow delegate William Pierce said of
Mason: "He is able and convincing in debt steady and firm in his principles, and undoubtedly
one of the best politicians in America."
After nearly four months of give and take, compromise and bullying, the delegates had
survived and so had their Constitution; but in Mason's view the convention still gave too little
attention given to citizens' rights. Mason distrusted the final draft as a protector of the
individual citizen or of the southern planting economy. During that last week, Mason recorded
his misgivings about the Constitution on the back of the printed report of the Committee of
Style, beginning simply: "There is no Declaration of Rights." From that preamble, Mason
proceeded to list what he called his "Objections to this Constitution of Government."

His original list of objections claimed that the Constitution upset the English common law,
made Congress into a kind of oligarchy, allowed the federal courts to destroy state ones, and
left the presidency rudderless without a "Constitutional Council." Mason feared that without
the latter, a natural cabinet "will grow out of the principal officers of the great departments;
the worst and most dangerous of all ingredients for such a Council in a free country." The
created office of the Vice President, Mason thought, was disastrous and unnecessary, since the
incumbent "for want of other employment is made president of the Senate, thereby
dangerously blending the executive and legislative powers."

As for the presidential powers, Mason thought the chief executive might misuse his
"unrestrained power of granting pardons for treason" and might "screen from punishment
those whom he had secretly instigated to commit the crime, and thereby prevent a discovery
of his own guilt." The president's treaty-making powers, combined with senatorial approval,
made such pacts the supreme law of the land without any scrutiny by the people's branch of
government-the House of Representatives. And by allowing a congressional majority to pass
laws restricting American commerce "the five Southern States, whose product and
circumstances are totally different from that of the eight Northern and Eastern States, may be
ruined."

Mason also lambasted the vague construction of the Constitution and foresaw the "general
welfare" clause as a catchall term bound to be abused. Although Mason specifically called for
declarations of freedom of the press and trial by jury, he lamented the ban on ex post facto
laws in the state legislatures since "there never was nor can be a legislature but must and will
make such laws, when necessity and the public safety require them."

Gloomy to the end, Mason predicted that without an immediate ban on slave trading the
nation would be "weaker, more vulnerable, and less capable of defense," and under the
Constitution would "set out [as] a moderate aristocracy" then degenerate into either a
monarchy or "tyrannical aristocracy." "It will," he predicted, "most probably vibrate some
years between the two, and then terminate in the one or the other."

First as a handwritten text and then as a printed pamphlet, Mason's "Objections" made the
rounds in Philadelphia's political circles during the last two weeks of September. From the
opening phrase of his "Objections" to the bill of rights that James Madison offered in Congress
two years later, the line is so direct that we can say Mason forced Madison's hand. Federalist
supporters of the Constitution could never overcome the protest created by Mason's phrase:
"There is no Declaration of Rights." Months later, Hamilton was still trying "to kill that snake"
in Federalist No. 84. Oliver Ellsworth's "Landholder" essays in 1787-88, perhaps more
influential than the papers of "Publius," also made a frontal. attack on Mason's "Objections,"
as did Federalist James Iredell in North Carolina in 1788.

But the idea was too powerful. Mason's pamphlet soon circulated along the Atlantic seaboard
and by the onset of winter the "Objections" had appeared in newspapers in Virginia and New
Jersey. Mason himself paid for a second printing and sent Washington the pamphlet early in
October, claiming that "a little Moderation & Temper, in the latter End of the Convention,
might have removed" his misgivings.

Mason also mailed one to Jefferson, then at his diplomatic post in Paris, explaining that "These
Objections of mine were first printed very incorrectly, without my Approbation, or Privity;
which laid me under some kind of Necessity of publishing them afterwards, myself. You will
find them conceived in general Terms; as I wished to confine them to a narrow Compass."
Mason went on to add to his list objections related to regulating the state militia, to the
potential power to abuse the election process, and the power of congressmen to raise their
own salaries. "But it would be tedious to enumerate all the Objections," Mason concluded,
"and I am sure they cannot escape Mr. Jefferson's Observation." But whatever his other
objections, it was the issue of the bill of rights that struck Jefferson. Not long after Mason's
pamphlet reached Jefferson's desk in Paris the American minister was writing to friends at
home in outspoken terms. Jefferson told Madison he liked the Constitution but was alarmed by
"the omission of a bill of rights," and, to John Adams's son-in-law, Jefferson said bluntly:
"Were I in America, I would advocate it [the Constitution] warmly till nine states should have
adopted, and then as warmly take the other side to convince the remaining four that they
ought not to come into it till the declaration of rights is annexed to it."

In a backhanded way, Jefferson's plan became the model. Alarmed by Anti-Federalist strategy
that aimed at a second federal convention, friends of the Constitution wanted to derail any
scheme for another national gathering. Although Madison was concerned that a bill of rights
would offer little real protection and by enumerating some rights put others in jeopardy, if
concessions on the bill-of-rights issue could forestall demands for a second convention,
Federalists came to realize they must pay that price. Starting at the Massachusetts ratifying
convention in February 1788, Federalists in charge of counting votes abandoned their adamant
position and began to talk about "recommendatory amendments."

By conceding that a bill of rights ought to be considered by the first Congress, Madison and his
coworkers whittled away at the AntiFederalist majority in Virginia. Their concession on a bill of
rights made it easier for committed AntiFederalist delegates to swallow the bitter pill of
ratification, and in Virginia the Federalists' gesture also gave proponents of the Constitution a
way to defend a vote in opposition to Patrick Henry and Mason, who were still not assuaged.
As they saw their majority melting away, Henry and Mason wanted their proposed
amendments, including a bill of rights, to be a condition for Virginia's ratification. When the
convention rejected that tactic and voted instead, as the Massachusetts delegates had done,
for "recommendatory" amendments, the game for the staunchest Anti-Federalists was over.
The Constitution was quickly ratified.

But James Madison had learned his lesson. A few months later, when he ran for a seat in that
first Congress, Madison had to assure constituents that "it is my sincere opinion that the
Constitution ought to be revised." What changes would he seek? Nothing less than a bill of
rights containing "the most satisfactory provisions for all essential rights, particularly the
rights of Conscience in the fullest latitude, the freedom of the press, trials by jury, security
against general warrants &c." It seems unlikely that Madison would have made such an about-
face without the storm of protest first raised by Mason's "Objections."

By not signing the Constitution, Mason had gained a principle but lost a friend. Or almost so,
for a painful estrangement between Madison and himself did not abate until Madison
introduced a bill of rights in Congress in September 1789. Mason quickly praised the
provisions in a letter to Congressman Samuel Griffin from Virginia, knowing his letter would be
seen by Madison. "I have received much Satisfaction from the Amendments to the federal
Constitution, which have lately passed the House of Representatives," Mason wrote, "I hope
they will also pass the Senate. With two or three further Amendments . I could cheerfully put
my Hand & Heart to the new Government."

One of the most self-effacing men ever to serve the American people, Mason regretted the
tensions that grew out of the ratification struggle. Eventually, he welcomed Madison and
Jefferson back to his home at Gunston Hall, and their friendship fell into the old grooves. But
Mason standing as a "founding father" was long under a cloud, owing chiefly to his stance on
the Constitution. His patriotic service in preparing the Fairfax Resolves in 1774, his cardinal
role at the Virginia Convention of 1776, his authorship of that state bill of rights, until 1829),
and his offering of time, talent, and money to the American cause between 1776 and 1781
became only dim memories, hardly mentioned in the standard histories. By the early twentieth
century, however, attention to civil liberties began to increase and scholars came to note the
original role Mason played when he insisted on constitutional protection for a free press and
other civil rights. By 1988, Mason was beginning to reap some of the acclaim he deserved for
his simple warning: "There is no Declaration of Rights."

Copyright 1985 by the American Political Science Association and American Historical
Association. This essay may be photocopied if attributed as follows: "Reprinted from this
Constitution: A Bicentennial Chronicle, Fall 1985, published by Project '87 of the American
Political Science Association and American Historical Association. For further information on
APSA copyrights contact APSA at apsa@apsanet.org, by phone at (202) 483-2512 or Fax (202)
483-2657.
Delegates to the Constitutional Convention: George Mason

Home > Constitutional Convention > Delegates > George Mason

George Mason
State: Virginia

Age at Convention: 62

Date of Birth: December 11,1725

Date of Death: October 7, 1792

Schooling: Personal tutors

Occupation: Planter and Slave Holder, Lending and Investments, Real Estate Land
Speculation, Public Security Investments, Land owner

Prior Political Experience: Author of Virginia Bill of Rights, State Lower House of
Virginia 1776-1780, 1786-1787, Virginia State Constitutional Convention 1776

Committee Assignments: First Committee of Representation, Committee of

Assumption of State Debts, Committee of Trade, Chairman Committee of Economy,
Frugality, and Manufactures

Convention Contributions: Arrived May 25 and was present through the signing of the Constitution, however he
did not sign the Constitution. Initially Mason advocated a stronger central government but withdrew his support
toward the end of the deliberations. He argued that the Constitution inadequately represented the interests of the
people and the States and that the new government will "produce a monarchy, or a corrupt, tyrannical
aristocracy." William Pierce stated that "he is able and convincing in debate, steady and firm in his principles, and
undoubtedly one of the best politicians in America." He kept notes of the debates at the Convention.

New Government Participation: He attended the ratification convention of Virginia where he opposed the
ratification of the Constitution. Did not serve in the new Federal Government.

Biography from the National Archives: In 1725 George Mason was born to George and Ann Thomson Mason.
When the boy was 10 years old his father died, and young George's upbringing was left in the care of his uncle,
John Mercer. The future jurist's education was profoundly shaped by the contents of his uncle's 1500-volume
library, one-third of which concerned the law.

Mason established himself as an important figure in his community.

As owner of Gunston Hall he was one of the richest planters in
Virginia. In 1750 he married Anne Eilbeck, and in 23 years of
marriage they had five sons and four daughters. In 1752 he
acquired an interest in the Ohio Company, an organization that
speculated in western lands. When the crown revoked the
company's rights in 1773, Mason, the company's treasurer, wrote his
first major state paper, Extracts from the Virginia Charters, with
Some Remarks upon Them.

During these years Mason also pursued his political interests. He was
a justice of the Fairfax County court, and between 1754 and 1779
Mason was a trustee of the city of Alexandria. In 1759 he was
elected to the Virginia House of Burgesses. When the Stamp Act of
1765 aroused outrage in the colonies, George Mason wrote an open
letter explaining the colonists' position to a committee of London
merchants to enlist their support.

In 1774 Mason again was in the forefront of political events when he assisted in drawing up the Fairfax Resolves, a
document that outlined the colonists' constitutional grounds for their objections to the Boston Port Act. Virginia's
Declaration of Rights, framed by Mason in 1776, was widely copied in other colonies, served as a model for
Jefferson in the first part of the Declaration of Independence, and was the basis for the federal Constitution's Bill

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Delegates to the Constitutional Convention: George Mason

of Rights.

The years between 1776 and 1780 were filled with great legislative activity. The establishment of a government
independent of Great Britain required the abilities of persons such as George Mason. He supported the
disestablishment of the church and was active in the organization of military affairs, especially in the West. The
influence of his early work, Extracts from the Virginia Charters, is seen in the 1783 peace treaty with Great
Britain, which fixed the Anglo-American boundary at the Great Lakes instead of the Ohio River. After
independence, Mason drew up the plan for Virginia's cession of its western lands to the United States.

By the early 1780s, however, Mason grew disgusted with the conduct of public affairs and retired. He married his
second wife, Sarah Brent, in 1780. In 1785 he attended the Mount Vernon meeting that was a prelude to the
Annapolis convention of 1786, but, though appointed, he did not go to Annapolis.

At Philadelphia in 1787 Mason was one of the five most frequent speakers at the Constitutional Convention. He
exerted great influence, but during the last two weeks of the convention he decided not to sign the document.

Mason's refusal prompts some surprise, especially since his name is so closely linked with constitutionalism. He
explained his reasons at length, citing the absence of a declaration of rights as his primary concern. He then
discussed the provisions of the Constitution point by point, beginning with the House of Representatives. The
House he criticized as not truly representative of the nation, the Senate as too powerful. He also claimed that the
power of the federal judiciary would destroy the state judiciaries, render justice unattainable, and enable the rich
to oppress and ruin the poor. These fears led Mason to conclude that the new government was destined to either
become a monarchy or fall into the hands of a corrupt, oppressive aristocracy.

Two of Mason's greatest concerns were incorporated into the Constitution. The Bill of Rights answered his primary
objection, and the 11th amendment addressed his call for strictures on the judiciary.

Throughout his career Mason was guided by his belief in the rule of reason and in the centrality of the natural
rights of man. He approached problems coolly, rationally, and impersonally. In recognition of his accomplishments
and dedication to the principles of the Age of Reason, Mason has been called the American manifestation of the
Enlightenment. Mason died on October 7, 1792, and was buried on the grounds of Gunston Hall.

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Delegates to the Constitutional Convention: George Mason

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GEORGE MASON & HISTORIC HUMAN RIGHTS DOCUMENTS

George Mason's Objections to the Constitution

In September 1787, during the final days of the Constitutional Convention, George Mason wrote the reasons
for his refusal to sign the Consitution on the back of a Committee of Style report. Manuscript copies of this
document were circulated and Mason sent copies to various individuals, including George Washington. On
November 22, the objections were printed in the Virginia Journal at the behest of Washington's secretary
Tobias Lear in order that he could publicly refute them. The original manuscript is in the Chapin Library at
Williams College.

Objections to This Constitution of Government

There is no Declaration of Rights, and the laws of the general government being paramount to the laws and
constitution of the several States, the Declarations of Rights in the separate States are no security. Nor are
the people secured even in the enjoyment of the benefit of the common law.

In the House of Representatives there is not the substance but the shadow only of representation; which can
never produce proper information in the legislature, or inspire conficence in the people; the laws will
therefore be generally made by men little concerned in, and unacquainted with their effects and
consequences.

The Senate have the power of altering all money bills, and of originating appropriations of money, and the
salaries of the officers of their own appointment, in conjunction with the president of the United States,
although they are not the representatives of the people or amenable to them.

These with their other great powers, viz.: their power in the appointment of ambassadors and all public
officers, in making treaties, and in trying all impeachments, their influence upon and connection with the
supreme Executive from these causes, their duration of office and their being a constantly existing body,
almost continually sitting, joined with their being one complete branch of the legislature, will destroy any
balance in the government, and enable them to accomplish what usurpations they please upon the rights and
liberties of the people.

The Judiciary of the United States is so constructed and extended, as to absorb and destroy the judiciaries of
the several States; thereby rendering law as tedious, intricate and expensive, and justice as unattainable, by
a great part of the community, as in England, and enabling the rich to oppress and ruin the poor.

The President of the United States has no Constitutional Council, a thing unknown in any safe and regular
government. He will therefore be unsupported by proper information and advice, and will generally be directed
by minions and favorites; or he will become a tool to the Senate --or a Council of State will grow out of the
principal officers of the great departments; the worst and most dangerous of all ingredients for such a Council
in a free country; From this fatal defect has arisen the improper power of the Senate in the appointment of
public officers, and the alarming dependence and connection between that branch of the legislature and the
supreme Executive.
   
Hence also spuring that unnecessary officer the Vice - President, who for want of other employment is made
president of the Senate, thereby dangerously blending the executive and legislative powers, besides always
giving to some one of the States an unnecessary and unjust pre -eminence over the others.

The President of the United States has the unrestrained power of granting pardons for treason, which may be
sometimes exercised to screen from punishment those whom he had secretly instigated to commit the crime,
and thereby prevent a discovery of his own guilt.

By declaring all treaties supreme laws of the land, the Executive and the Senate have, in many cases, an
exclusive power of legislation; which might have been avoided by proper distinctions with respect to treaties,
and requiring the assent of the House of Representatives, where it could be done with safety.

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GEORGE MASON & HISTORIC HUMAN RIGHTS DOCUMENTS

By requiring only a majority to make all commercial and navigation laws, the five Southern States, whose
produce and circumstances are totally different from that of the eight Northern and Eastern States, may be
ruined, for such rigid and premature regulations may be made as will enable the merchants of the Northern
and Eastern States not only to demand an exhorbitant freight, but to monopolize the purchase of the
commodities at their own price, for many years, to the great injury of the landed interest, and impoverishment
of the people; and the danger is the greater as the gain on one side will be in proportion to the loss on the
other. Whereas requiring two -thirds of the members present in both Houses would have produced mutual
moderation, promoted the general interest, and removed an insuperable objection to the adoption of this
government.

Under their own construction of the general clause, at the end of the enumerated powers, the Congress may
grant monopolies in trade and commerce, constitute new crimes, inflict unusual and severe punishments, and
extend their powers as far as they shall think proper; so that the State legislatures have no security for the
powers now presumed to remain to them, or the people for their rights.

There is no declaration of any kind, for preserving the liberty of the press, or the trial by jury in civil causes;
nor against the danger of standing armies in time of peace.

The State legislatures are restrained from laying export duties on their own produce.

Both the general legislature and the State legislature are expressly prohibited making ex post facto laws;
though there never was nor can be a legislature but must and will make such laws, when necessity and the
public safety require them; which will hereafter be a breach of all the constitutions in the Union, and afford
precedents for other innovations.

This government will set out a moderate aristocracy: it is at present impossible to foresee whether it will, in
its operation, produce a monarchy, or a corrupt, tyrannical aristocracy; it will most probably vibrate some
years between the two, and then terminate in the one or the other.

The general legislature is restrained from prohibiting the further importation of slaves for twenty odd years;
though such importations render the United States weaker, more vulnerable, and less capable of defence.

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George Mason's "Objections" and the Bill of
Rights
Robert A. Rutland, University of Tulsa

In 1787 George Mason was a political figure to be reckoned with,

spoken of in the same breath with Virginians Washington, ABOUT THE
Jefferson, Madison, Patrick Henry, and Richard Henry Lee. He was, AUTHOR
as they said then, "a man of parts"; Jefferson described him as "of Robert A. Rutland, is
the first order of greatness." The chief author of the Virginia former editor of the Papers
Declaration of Rights in 1776, Mason had been either a legislator of James Madison and is
or a confidant in the Revolutionary councils of the Old Dominion research professor of
from 1774 onward. Now, from May to September in 1787, Mason history at the University of
was a key member of his state's delegation at the Federal Tulsa.
Convention, a frequent and persuasive speaker, and the man who
played a vital role in such matters as presidential impeachment and fiscal responsibility.

But Mason did not approve of the outcome of the Constitutional Convention. He made
significant last minute motions on the convention floor, and one which his colleagues rejected
returned to haunt them: Mason belatedly called for the addition of a bill of rights to the
Constitution. Mason's call was shaped into a motion by Elbridge Gerry. They must have
witnessed the roll call of states with chagrin as the resolution "to prepare a Bill of Rights" was
defeated unanimously.

Then and later the Federalists were short-tempered when the subject of a bill of rights arose.
Delegate Robert Sherman was their spokesman when he helped derail Mason's motion. Stating
that he too was "for securing the rights of the people where requisite," Sherman continued,
that "the State Declarations of Rights are not repealed by this Constitution; and being in force
are sufficient." Moreover, Sherman contended, "the Legislature may be safely trusted." James
Madison sided with Sherman and five days later, thirty-nine of Mason's col leagues (one by
proxy) signed the Constitution. Mason, Gerry, and Edmund Randolph (who also declined to
sign), watched the convention approve the Constitution, according to Dr. Franklin's motion,
"by the unanimous consent of the States present."

Franklin's tactic placed the trio of naysayers on the defensive, an awkward position for one like
Mason who had been so hopeful at the start of the enterprise. Mason had come to Philadelphia
that spring convinced that "the Eyes of the United States are turn'd upon this Assembly, &
their Expectations raised to a very anxious Degree." "May God grant we may be able to gratify
them," Mason prayed in June 1787. Along with James Wilson and James Madison, Mason had
engaged articulately in debates on behalf of enlarging participation. Mason's arguments for
popular election of the lower house in Congress, his insistence on the right to impeach a
corrupt president, and his approval of presidential elections by a direct vote of the citizenry all
fitted his philosophical commitment to a broad-based republic. A slave owner and man of
means, Mason had also denounced the slave trade.

At the same time, Mason sought to keep the Union from swallowing the states, and thus he
supported selection of senators by the state legislatures and vowed "he never would agree to
abolish the State governments. or render them absolutely insignificant." Mason also
adamantly sought protection for southern shipping interests in the form of a two-thirds
majority for commercial legislation. Within his own guidelines, Mason steadily argued for a
government that trusted the people over the privileged. Fellow delegate William Pierce said of
Mason: "He is able and convincing in debt steady and firm in his principles, and undoubtedly
one of the best politicians in America."
After nearly four months of give and take, compromise and bullying, the delegates had
survived and so had their Constitution; but in Mason's view the convention still gave too little
attention given to citizens' rights. Mason distrusted the final draft as a protector of the
individual citizen or of the southern planting economy. During that last week, Mason recorded
his misgivings about the Constitution on the back of the printed report of the Committee of
Style, beginning simply: "There is no Declaration of Rights." From that preamble, Mason
proceeded to list what he called his "Objections to this Constitution of Government."

His original list of objections claimed that the Constitution upset the English common law,
made Congress into a kind of oligarchy, allowed the federal courts to destroy state ones, and
left the presidency rudderless without a "Constitutional Council." Mason feared that without
the latter, a natural cabinet "will grow out of the principal officers of the great departments;
the worst and most dangerous of all ingredients for such a Council in a free country." The
created office of the Vice President, Mason thought, was disastrous and unnecessary, since the
incumbent "for want of other employment is made president of the Senate, thereby
dangerously blending the executive and legislative powers."

As for the presidential powers, Mason thought the chief executive might misuse his
"unrestrained power of granting pardons for treason" and might "screen from punishment
those whom he had secretly instigated to commit the crime, and thereby prevent a discovery
of his own guilt." The president's treaty-making powers, combined with senatorial approval,
made such pacts the supreme law of the land without any scrutiny by the people's branch of
government-the House of Representatives. And by allowing a congressional majority to pass
laws restricting American commerce "the five Southern States, whose product and
circumstances are totally different from that of the eight Northern and Eastern States, may be
ruined."

Mason also lambasted the vague construction of the Constitution and foresaw the "general
welfare" clause as a catchall term bound to be abused. Although Mason specifically called for
declarations of freedom of the press and trial by jury, he lamented the ban on ex post facto
laws in the state legislatures since "there never was nor can be a legislature but must and will
make such laws, when necessity and the public safety require them."

Gloomy to the end, Mason predicted that without an immediate ban on slave trading the
nation would be "weaker, more vulnerable, and less capable of defense," and under the
Constitution would "set out [as] a moderate aristocracy" then degenerate into either a
monarchy or "tyrannical aristocracy." "It will," he predicted, "most probably vibrate some
years between the two, and then terminate in the one or the other."

First as a handwritten text and then as a printed pamphlet, Mason's "Objections" made the
rounds in Philadelphia's political circles during the last two weeks of September. From the
opening phrase of his "Objections" to the bill of rights that James Madison offered in Congress
two years later, the line is so direct that we can say Mason forced Madison's hand. Federalist
supporters of the Constitution could never overcome the protest created by Mason's phrase:
"There is no Declaration of Rights." Months later, Hamilton was still trying "to kill that snake"
in Federalist No. 84. Oliver Ellsworth's "Landholder" essays in 1787-88, perhaps more
influential than the papers of "Publius," also made a frontal. attack on Mason's "Objections,"
as did Federalist James Iredell in North Carolina in 1788.

But the idea was too powerful. Mason's pamphlet soon circulated along the Atlantic seaboard
and by the onset of winter the "Objections" had appeared in newspapers in Virginia and New
Jersey. Mason himself paid for a second printing and sent Washington the pamphlet early in
October, claiming that "a little Moderation & Temper, in the latter End of the Convention,
might have removed" his misgivings.

Mason also mailed one to Jefferson, then at his diplomatic post in Paris, explaining that "These
Objections of mine were first printed very incorrectly, without my Approbation, or Privity;
which laid me under some kind of Necessity of publishing them afterwards, myself. You will
find them conceived in general Terms; as I wished to confine them to a narrow Compass."
Mason went on to add to his list objections related to regulating the state militia, to the
potential power to abuse the election process, and the power of congressmen to raise their
own salaries. "But it would be tedious to enumerate all the Objections," Mason concluded,
"and I am sure they cannot escape Mr. Jefferson's Observation." But whatever his other
objections, it was the issue of the bill of rights that struck Jefferson. Not long after Mason's
pamphlet reached Jefferson's desk in Paris the American minister was writing to friends at
home in outspoken terms. Jefferson told Madison he liked the Constitution but was alarmed by
"the omission of a bill of rights," and, to John Adams's son-in-law, Jefferson said bluntly:
"Were I in America, I would advocate it [the Constitution] warmly till nine states should have
adopted, and then as warmly take the other side to convince the remaining four that they
ought not to come into it till the declaration of rights is annexed to it."

In a backhanded way, Jefferson's plan became the model. Alarmed by Anti-Federalist strategy
that aimed at a second federal convention, friends of the Constitution wanted to derail any
scheme for another national gathering. Although Madison was concerned that a bill of rights
would offer little real protection and by enumerating some rights put others in jeopardy, if
concessions on the bill-of-rights issue could forestall demands for a second convention,
Federalists came to realize they must pay that price. Starting at the Massachusetts ratifying
convention in February 1788, Federalists in charge of counting votes abandoned their adamant
position and began to talk about "recommendatory amendments."

By conceding that a bill of rights ought to be considered by the first Congress, Madison and his
coworkers whittled away at the AntiFederalist majority in Virginia. Their concession on a bill of
rights made it easier for committed AntiFederalist delegates to swallow the bitter pill of
ratification, and in Virginia the Federalists' gesture also gave proponents of the Constitution a
way to defend a vote in opposition to Patrick Henry and Mason, who were still not assuaged.
As they saw their majority melting away, Henry and Mason wanted their proposed
amendments, including a bill of rights, to be a condition for Virginia's ratification. When the
convention rejected that tactic and voted instead, as the Massachusetts delegates had done,
for "recommendatory" amendments, the game for the staunchest Anti-Federalists was over.
The Constitution was quickly ratified.

But James Madison had learned his lesson. A few months later, when he ran for a seat in that
first Congress, Madison had to assure constituents that "it is my sincere opinion that the
Constitution ought to be revised." What changes would he seek? Nothing less than a bill of
rights containing "the most satisfactory provisions for all essential rights, particularly the
rights of Conscience in the fullest latitude, the freedom of the press, trials by jury, security
against general warrants &c." It seems unlikely that Madison would have made such an about-
face without the storm of protest first raised by Mason's "Objections."

By not signing the Constitution, Mason had gained a principle but lost a friend. Or almost so,
for a painful estrangement between Madison and himself did not abate until Madison
introduced a bill of rights in Congress in September 1789. Mason quickly praised the
provisions in a letter to Congressman Samuel Griffin from Virginia, knowing his letter would be
seen by Madison. "I have received much Satisfaction from the Amendments to the federal
Constitution, which have lately passed the House of Representatives," Mason wrote, "I hope
they will also pass the Senate. With two or three further Amendments . I could cheerfully put
my Hand & Heart to the new Government."

One of the most self-effacing men ever to serve the American people, Mason regretted the
tensions that grew out of the ratification struggle. Eventually, he welcomed Madison and
Jefferson back to his home at Gunston Hall, and their friendship fell into the old grooves. But
Mason standing as a "founding father" was long under a cloud, owing chiefly to his stance on
the Constitution. His patriotic service in preparing the Fairfax Resolves in 1774, his cardinal
role at the Virginia Convention of 1776, his authorship of that state bill of rights, until 1829),
and his offering of time, talent, and money to the American cause between 1776 and 1781
became only dim memories, hardly mentioned in the standard histories. By the early twentieth
century, however, attention to civil liberties began to increase and scholars came to note the
original role Mason played when he insisted on constitutional protection for a free press and
other civil rights. By 1988, Mason was beginning to reap some of the acclaim he deserved for
his simple warning: "There is no Declaration of Rights."

Copyright 1985 by the American Political Science Association and American Historical
Association. This essay may be photocopied if attributed as follows: "Reprinted from this
Constitution: A Bicentennial Chronicle, Fall 1985, published by Project '87 of the American
Political Science Association and American Historical Association. For further information on
APSA copyrights contact APSA at apsa@apsanet.org, by phone at (202) 483-2512 or Fax (202)
483-2657.
14 Ga. 438, 1854 WL 1492 (Ga.)

Supreme Court of Georgia.

PADELFORD, FAY & Co. plaintiffs in error

v.
THE MAYOR AND ALDERMEN OF THE CITY OF
SAVANNAH.
No. 64.
January Term, 1854.

*1 [1.] The Ordinance of the City Council of Savannah, “That on the gross amount of sales of
all negroes, goods, wares and merchandise or other commodity, article or thing sold within the
corporate limits of the city of Savannah, by any person or persons whomsoever, upon or for a
commission, premium, per centage or other profit charged or to be charged thereon, or on joint
account, and when not included in the returns as stock in trade, and whether for cash or credit,
between the twenty-fourth day of January, 1842, and the last of April, 1842, inclusive, and
annually thereafter, between the first day of May in each and every year, and the last day of April
in each succeeding year, inclusive, there shall be paid by the person so selling, whether
commission merchant, broker or agent of any nature or kind whatsoever, fifty cents on every
hundred dollars of the amount of such sales, respectively”, &c., is not unconstitutional, according
to the decision of the Supreme Court of the U. S. in Brown vs. Maryland, 12 Wheat.

[2.] That case is overruled by the License Cases, in 5 Howard's R.

[3.] And by the Passenger Cases, in 7 Howard's R.

[4.] And partly by the case of Groves et al. vs. Slaughter, 15 Pet.

[5.] The Constitution is to be construed in the sense in which it was understood by the makers
of it at the time when they made it.

[6.] This sense is expressed by the four following propositions:

1. That the Constitution delegated to the General Government, or any department thereof, no
power by implication, but only delegated such powers as it expressly enumerated.

2. That it delegated no exclusive power, unless the delegation was said to be exclusive.

3. That it laid no prohibition upon the States, except such as it specified.

 4. That the words used in it, if susceptible of more meanings than one, were used in the
meaning which was least favorable to the delegation of power, and most favorable to its
retention.

[7.] The Supreme Court of Georgia is co-equal and co-ordinate with the Supreme Court of the
U. S.; and therefore, the latter cannot give the former an order, or make for it a precedent.

[8.] The four propositions are true, anything said or done by the Supreme Court of the U. S. to
the contrary, notwithstanding.

[9.] Tried by these, the decision in Brown vs. Maryland, is unconstitutional.

[10.] Tried by these, the Ordinance in question is not unconstitutional, as against the
commercial clause.

[11.] Tried by these, it is not against the clause which prohibits the State to tax imports.

[12.] The meaning of this clause is-

1. That without the consent of Congress, a State may tax imports for the purpose of executing
her Inspection Laws.

2. That the net produce of such a tax is for the U. S.

*2 3. That with the consent of Congress a State may tax imports for any purpose.

4. That even without the consent of Congress, a State may tax imports for any purpose,
subject only to a power in Congress to „revise‟ and „control‟ the Tax Law.

5. That the part of the clause giving the „net produce‟ to the U. S. applies only to Tax Laws
for inspection purposes.

[13.] Whether the Court is not bound to presume that this Ordinance was passed for executing
an Inspection Law, may admit of a doubt.

[14.] Admitting it not to have been for inspection purposes, yet it is to be presumed that
Congress has consented to it.

[15.] But if Congress has not consented to it, still it is not void, but only subject to be revised
and controlled by Congress.

[16.] If void, it works no wrong to these plaintiffs.

Certiorari in Chatham. Application refused by Judge FLEMING, at Chambers, Dec. 21st,

1853.
 The City Council of the City of Savannah, passed the following Ordinance: “ And be it farther
ordained, that on the gross amount of sales of all negroes, goods, wares and merchandize, or
other commodity, article or thing, sold within the corporate limits of the City of Savannah, by
any person or persons whomsoever, upon or for a commission, premium, per centage or other
profit, charged or to be charged thereon, or on joint account, and when not included in the returns
as stock in trade, and whether for cash or credit, between 24th January, 1842, and the last of
April, 1842, and annually thereafter, between 1st May in each and every year, and the last day of
April in each succeeding year, inclusive, there shall be paid by the person so selling, whether
commission merchant, trader or agent, of any nature or kind whatever, fifty cents on every
hundred dollars of the amount of such sales respectively”.

Padelford, Fay & Co. commission merchants, refused to pay the tax upon goods and
merchandize imported into this State, and sold by them in the original casks and packages, upon
commission, upon the ground that the laying of this tax was a violation of the Constitution of the
United States. Upon certiorari before Judge Fleming, this objection was overruled, and this
decision is assigned as error.

West Headnotes

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The Supreme Court of Georgia is co-equal and co-ordinate with the Supreme Court of the U.
S.; and therefore, the latter cannot give the former an order, or make for it a precedent.

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The supreme court of Georgia is co-equal and co-ordinate with the supreme court of the
United States, and not inferior and subordinate to that court, and, therefore, the supreme court of
the United States has no jurisdiction to make for the court of Georgia a precedent as to the
construction of the United States constitution.

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3, § 2, does not extend to the state courts, but is confined to the inferior courts mentioned in the
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If void, it works no wrong to these plaintiffs.

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But if Congress has not consented to it, still it is not void, but only subject to be revised and
controlled by Congress.

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Admitting it not to have been for inspection purposes, yet it is to be presumed that Congress
has consented to it.

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Whether the Court is not bound to presume that this Ordinance was passed for executing an
Inspection Law, may admit of a doubt.

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prohibition of the constitution of the United States.

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A city ordinance levying a tax on moneys received from commission sales of merchandise
and personal property is not unconstitutional on the ground that when applied to goods brought
from foreign states and countries it interferes with interstate commerce, as the tax is on the
proceeds of the sale, and not on the property, and does not attach until by the sale the property
has become mingled with the property of the state.

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With regard to validity of tax on sales imposed by ordinance, the case of Brown v. State of
Maryland, 25 U.S. 419, 12 Wheat. 419, 6 L.Ed. 678, is overruled by the Passenger Cases, in 48
U.S. 283, 7 How. 283, 12 L.Ed. 702.

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The Ordinance of the City Council of Savannah, “That on the gross amount of sales of all
negroes, goods, wares and merchandise or other commodity, article or thing sold within the
corporate limits of the city of Savannah, by any person or persons whomsoever, upon or for a
commission, premium, percentage or other profit charged or to be charged thereon, or on joint
account, and when not included in the returns as stock in trade, and whether for cash or credit,
between the twenty-fourth day of January, 1842, and the last of April, 1842, inclusive, and
annually thereafter, between the first day of May in each and every year, and the last day of April
in each succeeding year, inclusive, there shall be paid by the person so selling, whether
commission merchant, broker or agent of any nature or kind whatsoever, fifty cents on every
hundred dollars of the amount of such sales, respectively,” &c., is not unconstitutional, according
to the decision of the Supreme Court of the U. S., in Brown v. State of Maryland, 25 U.S. 419,
12 Wheat. 419, 6 L.Ed. 678.

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The meaning of the clause of the United States constitution referring to the taxation of
imports, is: (1) A state, without the consent of congress, may tax imports, to execute her
inspection laws. (2) The “net produce” of such tax is to be for the use of the United States
treasury. (3) With the consent of congress, a state may tax imports for any purpose. (4) Even
without the consent of congress, a state may tax imports for any purpose, subject only to a power
in congress to revise and control the tax. (5) The part of the clause requiring the “net produce,”
etc., to be for the use of the United States, applies only to taxes on imports, laid for executing
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 An ordinance levying a tax on certain sales is not against the clause which prohibits the State
to tax imports.

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 The four propositions are true, anything said or done by the Supreme Court of the U. S. to the
contrary, notwithstanding.

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That the words used in it, if susceptible of more meanings than one, were used in the meaning
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That it delegated no exclusive power, unless the delegation was said to be exclusive.

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Where a state law is alleged to conflict with the provision in the federal constitution which
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LAW & BARTOW, for plaintiff in error.

GRIFFIN, for defendant in error.

By the Court.- BENNING J., delivering the opinion.

*3 But a single question is presented for decision in this case; and that is, whether the
Ordinance of the City Council of Savannah violates the Constitution of the United States.

The plaintiffs in error insist that it violates two of the provisions of the Constitution-that
which declares that Congress shall have power “To regulate commerce with foreign nations and
among the several States”; and that which declares that “No State shall, without the consent of
the Congress, lay any imposts or duties on imports or exports, except what may be absolutely
necessary for executing its Inspection Laws”.

The question is one of the utmost importance. The State has passed many unconstitutional
Tax Laws, if this be unconstitutional. The great Tax Act of 1804, declared that “Thirty-one and a
quarter cents shall be levied on every hundred dollars' value of all person's stock in trade”.

Also, “That any non-resident who shall expose to sale any goods in this State, shall, on his
arrival, or within seven days after entering the same, make return,” &c.

The Act of 1821 declares that there shall be paid to the State “A tax of thirty-one and a
quarter cents on every hundred dollars' value of stock operated upon by the Steamboat Company
of Georgia”.

The Act of 1840 declares that the tax “On capital employed in the business of Brokerage, and
capital employed by Insurance and Trust Companies, in this State, shall be the thirty-one and a
quarter cents on every hundred dollars so invested”.

The Act of 1845 lays “On all agencies of Banks authorized by other States, and kept within
this State, a tax of eight cents on every hundred dollars, on the amount of exchange bought and
sold”.

The Act of 1850 imposes a tax on “Each and every agent of any foreign Bank or individual
residing in another State, doing business in this State”.

The same principle that will make the Ordinance of the City Council unconstitutional, will
equally make these acts so. Indeed, if the Ordinance violates the provision in the Constitution, as
to the regulation of commerce, it is not very easy to see what is left to a State to tax. It can lay no
tax that will not more or less affect commerce; more or less prevent consumption, and without
consumption there can be no commerce.

The question, then, deserves the most serious consideration.

 The question, it is insisted by counsel for plaintiff, has been settled in their favor by the
decision of the Supreme Court of the U. S. in the case of Brown et al. vs. Maryland, 12 Wheat.
419. That case, therefore, will be noticed.

The case grew out of an Act of Maryland, “That all importers of foreign articles or
commodities of dry goods, wares or merchandize, by bail or package, or of wine, rum, brandy,
whiskey and other distilled spirituous liquors, &c. and other persons selling the same by
wholesale, bale or package, &c. should, before they were authorized to sell, take out a license,
for which they should pay fifty dollars.

*4 The plaintiffs in the case “Imported and sold one package of foreign dry goods, without
having license to do so.”

The Supreme Court determined that this Act was a breach of each of the two clauses of the
Constitution which I have quoted.

In relation to its being a violation of the clause which prohibits the States from laying any tax
on imports or exports, without the consent of Congress, the Court, through Marshall, C. J. say,
“It may be conceded, that the words of the prohibition ought not to be pressed to their utmost
extent”. “But while we admit that sound principles of construction ought to restrain all Courts
from carrying the words of the prohibition beyond the object the Constitution is intended to
secure, that there must be a point of time when the prohibition ceases, and the power of the State
to tax commences; we cannot admit that this point of time is the instant that the articles enter the
country.” “It is sufficient for the present to say, generally, that when the importer has so acted
upon the thing imported, that it has become incorporated and mixed up with the mass of property
in the country, it has perhaps lost its distinctive character as an import.” “This indictment is
against the importer, for selling a package of dry goods in the form in which it was imported,
without a license. This state of things is changed, if he sells them or otherwise mixes them with
the general property of the State, by breaking up his packages and travelling with them as an
itinerant pedlar.”

The amount of this is, that although the mere introduction of an import into a State does not
make it cease to be an import, yet, if the importer so act upon it as to make it become
incorporated and mixed up with the mass of property in the country, as by selling it or breaking
up the package in which it is contained, it does then cease to be an import; and that as soon as it
ceases to be an import, it may be taxed by the State.

Is this case analagous to the one we are deciding? It is not. It was a case in which the Law
prohibited the importer from selling the import. This is a case in which the Law lets him sell the
import, but lays a tax on what he gets for it, on the gross amount of money which he receives for
it. Now this money, it is, which is taxed. And it is something which “Had been incorporated and
mixed up with the mass of property in the country.” Something as different from “A package of
dry goods, in the form in which it was imported”, as that package, when sold, would be different
from itself, in the form in which it was imported, or as that package, when broken up, would be
different from itself, before its being broken up.
 According to the principles, then, of Brown vs. Maryland, the State can, rather than cannot,
tax this something-this money-the proceeds of the sale of the imports.

*5 Again, the gross amount of sales are not the exact equivalents to the seller of the things
sold. This amount is made of the cost of the goods sold and of the seller's profits, on them.
Where do these profits come from? They, at least, are not imports. A tax on the gross amount of
sales, is a tax, in part, on these profits.

And all of the expenses to which the importer is put, after his import gets into the country, to
bring it to sale, also enter into the gross amount of sales. His agents, his store-houses, his
insurers, all cost him money. This cost he puts in the price of the import when he sells it. Now
cannot the State lay a tax on these profits-these services of agents-these storages- these
insurances? A tax on the gross amount of sales is a tax, in part, on these things. But a tax on the
naked import, is not a tax on any of them. I say in part; but would not a Court be justified, in
order to save its State from the imputation of having violated the Constitution, to presume that
the whole tax was intended to be on this part-the part of the “gross amount of sales,” due to these
several items, and that the whole gross amount of sales was adopted merely as a convenient
measure of the tax. Be this as it may, there is certainly a marked difference between “imports”
and the “gross amount of the sales” of imports.

But the Ordinance is not confined to the gross amount of the sales of imports. Imports are not
mentioned in it. It is a general Tax Law. It lays a tax on the gross amount of sales of all negroes,
goods, wares and merchandize, or other commodity, article or thing sold within the corporate
limits of Savannah, by any person, upon a commission, &c. “Between the first day of May in
each and every year, and the last day of April in each succeeding year”, &c.

The tax is upon the gross amount of the sales arising from a whole year's business, and
dealing in articles of whatever kind.

This shows the intention to have been to put articles of import, to say the least, upon no worse
footing than domestic products. And it is not said in Brown vs. Maryland, that the State must
discriminate in favor of the foreigner, and not tax him when she taxes her own citizens. But it is
said, in that case, “That in our complex system, the object of the powers conferred on the
government of the Union, and the nature of the often conflicting powers which remain in the
States, must always be taken into view, and may aid in expounding the words of any particular
clause”. Now, what was the object of this prohibition? In a word, was the object to put foreigners
in a better condition than natives? We know the object was not to put citizens of other States in
that better condition, for as to this, the Constitution, in another clause, says-“The citizens of each
State shall be entitled to all privileges and immunities of citizens in the several States”. They
shall be equal to citizens not better off than citizens. If, then, the object was not to put foreigners
in a better condition than natives, the object was not to prohibit such an Ordinance as this, for it
merely puts them upon the same footing as that of citizens. But, indeed, the great object of this
clause, as the history of it shows, and to which I may hereafter refer, was to prevent the seaboard
States from taxing the imports of the interior States, as those imports passed through the former
States to the latter. To do this effectually, discriminating taxes have to be laid upon such imports.
But this is not a discriminating tax.
 *6 According, then, to the principles laid down in Brown vs. Maryland, this Ordinance is not
a violation of the clause of the Constitution which prohibits the States to tax imports.

Is it, according to those principles, a violation of the power delegated to Congress, “To
regulate commerce with foreign nations and among the States?” It is not. Those principles apply
equally to both clauses of the Constitution. If the “gross amount of sales” is not an import, or not
imports, it is not any thing which belongs to foreign or interstate commerce, and therefore, not
any thing falling under the power to regulate such commerce.

[1.] According, then, to the principles laid down in Brown vs. Maryland, this Ordinance is not
unconstitutional. This is the opinion of every member of this Court. But speaking for myself, I
am not willing to let the decision rest on this ground alone. I do not wish to be considered, by
implication, as admitting that I think the decision in Brown vs. Maryland to be right, or as
admitting that I think a decision of the Supreme Court of the U.S. is a binding precedent for this
Court. And I prefer, too, to put the decision upon the Constitution itself, as I understand the
Constitution, rather than upon any decision. I shall, therefore, consider the case further.

In my opinion, the following propositions are true:

1. The decision in Brown vs. Maryland, has been overruled by the Supreme Court of the U. S.
itself.

2. The Constitution is to be construed in the sense in which it was understood by the makers
of it at the time when they made it.

3. According to this sense, the Supreme Court of the U.S. has no appellate or other
jurisdiction over this Court, and cannot, therefore, make a precedent for it.

4. According to this sense, Brown vs. Maryland, ought to be overruled, if it has not been.

5. And according to this sense, the decision of the Court below, in this case, ought to be
affirmed.

These are propositions of some import. I shall, therefore, hold myself excused, if I go
somewhat at large, into the proofs by which I think they are established. I, alone, am responsible
for them, and for all that may be said in their support. What the other members of the Court may
think of them, or of anything I may say in their support, I know not.

1. Has Brown vs. Maryland been overruled? It has, by several decisions of the Supreme
Court; and first, by the decisions in the License Cases. There were three of those cases, one from
New Hampshire, one from Massachusetts, and one from Rhode Island.

The facts in the N. Hampshire case were these: N. Hampshire by law, forbade “Any person,
without a license, to sell wine, rum, gin, brandy, or other spirits, in any quantity”.-Certain
persons of the name of Pierce, bought a barrel of gin in Boston, brought it coastwise into N.
Hampshire, and in N. Hampshire sold it. For this they were indicted under the aforesaid law, and
were found guilty, notwithstanding their insisting that the law violated these same two provisions
of the Constitution. They took their case up to the Supreme Court of the U. S.; and it affirmed the
decision of the Court in N. Hampshire. (5 How. 554.)

*7 Now this case is similar to that of Brown vs. Maryland, in every material respect, except
that the article sold in it, was not an import from a foreign nation, but from a neighboring State.
But the decision in Brown vs. Maryland, was declared to be equally applicable to the case of
importations from a sister State. (12 Wheat. 449.)

To the extent, then, of „commerce‟ and „imports' „ among the States', this decision overrules
Brown vs. Maryland.-This, indeed, was admitted by the counsel for plaintiffs in error, in the case
now under consideration.

The Massachusetts case grew out of a Law of that State, which forbade the sale of liquors in
less quantity than twenty-eight gallons, without a license. One Thurlows sold liquor in less
quantities than twenty-eight gallons; and some of it so sold, was of foreign product. The Court in
Massachusetts first, and then the Supreme Court of the U. S., held the Law to be no violation of
the Constitution.

In the last Court, the case was argued by Webster, Choate and Hallet, for the retailer; and in
the argument, we have Mr. Webster's and Mr. Choate's exposition of Brown vs. Maryland. They
rested their argument exclusively upon that case. They say the effect of the law was such, that in
the county of the plaintiff's residence, containing 100,000 inhabitants, no license had been
granted for six years.

And as to what Brown vs. Maryland decides, this is what they say:

What is the extent of the effect of an Act of Congress? Regarded as a license to, or contract
with the importer, communicating a right to sell, according to the views in Brown vs. Maryland,
447, what is its extent? The plaintiff contends that it would be repugnant to, and in fraud of the
license, either to ordain that no one shall buy of the importer; or to ordain that no one having
bought, shall re-sell: because either prohibition would totally defeat the license itself. The license
is a license to carry the article to market; to trade in it; to have access with it to the consuming
capacity of the country.

The ground on which Congress legislate, in passing such an Act, and the just expectations and
reasonings of the importer, prove this.

“The interception of the article, in the hands of the first buyer, on its way to a market,
excludes it from market, and shuts the importer from the country as really as if he were
prohibited to sell.”

This is the view of Webster and Choate, as to Brown vs. Maryland. And is it possible to doubt
its correctness?-“The license (the Act of Congress) is a license to carry the article to a market, to
trade in it, to have access with it to the consuming capacity of the country”; that is, to be allowed
to sell by retail. Without retail, there can be no consumption worth talking about. (5 How. 505,
513.)

*8 The decision in Brown vs. Maryland says, that the States cannot prohibit the sale of
imports by wholesale. The reason of the decision equally says, that they cannot prohibit the sale
of imports by retail.

Now the decision in this Massachusetts License Case says, that the States may prohibit the
sale of imports, by retail-the reason of the decision equally says, they may prohibit their sale by
wholesale. This reason is, that the States have power to stop the consumption of the article. And
this may be done effectually by a prohibition of one sort of sale, as by a prohibition of the other.
The reason, then, on which the decision in Brown vs. Maryland is made to stand, is repudiated by
this decision; and when the reason of a decision is repudiated, the decision itself is overruled. It
is true, perhaps, that this ought to be said at the time when the reason is repudiated; otherwise,
the ghost of the overruled case may frighten the timid or mislead the weak.

The Rhode Island Case was not unlike the Massachusetts Case.

These cases not only overrule the case of Brown vs. Maryland; but they establish just the
opposite principle to the one which it established. They establish the principle that an article
from abroad ceases to be an import- ceases to be an article of foreign commerce, the instant it
enters, with the permission of the government of the home territory. And if it is ever to cease to
be an import at all-ever to lose its foreign attributes and become naturalized, is not this the point
of time at which the charge must take place? The article undergoes no farther transformation,
except such as domestic articles undergo. Why, then, should the time when the change is to take
place, be put off until the article comes to second or third hands; or until it comes to the
consumer; or until it is broken up into fragments. No reason appears for such postponement. If
postponed, the selection may as well be of one of the points of time as of another. There is
nothing in them to justify a preference of one to another. Not only so, but nothing is gained to the
importer or to anybody, by any such postponement.

And this is the ground upon which the opinion of one of the Judges is frankly put-Mr. Justice
Daniel. He says: “Imports in a political or fiscal, as well as in common practical acceptation, are
properly commodities brought in from abroad, which either have not reached their perfect
investiture or their ultimate destination, as property within the jurisdiction of the State; or which
still are subject to the power of the Governernment, for a fulfilment of the conditions upon which
they have been admitted to entrance: as for instance, goods on which duties are still unpaid, or
which are bonded, or in public ware-houses. So soon as they are cleared of all control of the
Government which permits their introduction, and have become the complete and exclusive
property of the citizen or resident, they are no longer imports in a political, or fiscal, or common
sense.”

*9 It follows from this notion of an import, that the right of sale is not an incident of an
import.
 This, indeed, is the necessary conclusion from what was the actual decision of the whole
Court, but it is not expressed by any of the Judges, except Mr. Justice Daniel and Mr. Justice
Woodbury. They express it, each for himself. (5 How. 615, 616, 619.) The latter uses this strong
language-“ It is manifest, also, whether as an abstract proposition or practical measure, that a
prohibition to import is one thing, while a prohibition to sell without a license, is another and
entirely different”.

It is true, the other Judges do not disavow, in words, the principles of Brown vs. Maryland.
They adopt a different mode, but one which equally effects the same object-the gentle mode of
making a distinction where there is not a difference-a mode long since canonized by the courtesy
or timidity of Courts, but a mode which is a most fruitful source of litigation. When a case is
overruled, why ought it not to be overruled effectually, so that it may no longer mislead?

Mr. Chief Justice Taney, Mr. Justice Catron and Mr. Justice Nelson, put their judgments
chiefly, if not altogether, upon the ground that the Laws of Massachusetts and R. Island only
interfere with the retail selling of the article imported, after it has left the hands of the importer,
and not with the wholesale selling of it while it remains in his hands. But this, as we have seen, is
sufficient to overrule the whole case of Brown vs. Maryland. This takes its life out of it.

Mr. Justice McLean and Mr. Justice Grier, also put their decisions upon this ground, in part,
and in part upon the ground that the States retain a “police” power, and that these Laws of
Massachusetts and R. Island, as well as those of N. Hampshire, were made in the exercise of that
power.

Now, if a Law, regulating the sale of wines and spirituous liquors, is a Police Law, why is not
a Law, regulating the sale of any other commodity, equally a Police Law? That wines and spirits
are ordinary articles of traffic- indeed, most important articles of traffic, is known to all. At the
time when this decision was made, viz: 1847, the value of imported wines and spirits amounted
to over $3,000,000, a value greater than that of any other article of foreign commerce, except
three or four. They are made articles of traffic by the Commercial Acts of Congress. If, therefore,
a State, by virtue of its Police Power, may regulate their sale, notwithstanding those Acts, why
may it not, by virtue of the same power, regulate the sale of any other article, made an article of
traffic, by those Acts? And if this be so, the amount of it is, that a State may, by virtue of its
Police Power, impose a tax on the sale of any article brought into it from abroad, as soon as it
enters its territory, whether it be in the hands of the importer or in the hands of any body else.
And this result is equally fatal to the decision in Brown vs. Maryland.

*10 [2.] Upon the whole, it seems necessary to say that the case of Brown vs. Maryland, is
overruled by these License Cases. And this effect have also the decisions in the Passenger Cases.

These cases arose out of Laws made by Massachusetts and N. York, respectively, which Laws
declared, in substance, that no alien passenger should land on their shores, until he had paid a
tax.

A question was made before the Courts of New York and Massachusetts, respectively,
whether these Laws were not in violation of the aforesaid two clauses of the Constitution. The
Supreme Court of New York decided that the N. York Law was not. Its decision was appealed
from, and the case was carried before the Court of Errors of N. York. That Court affirmed the
decision.

The Supreme Court of Massachusetts, also, decided the Massachusetts Law not to be
unconstitutional.

Both cases were carried up to the Supreme Court of the U. S. and that Court decided, by five
Judges to four, Justices Wayne, Catron, McLean, Grier and McKinley, to Chief Justice Taney,
Justices Nelson, Daniel and Woodbury, that the Law was unconstitutional.

The ground on which the majority put their decision was, that as long as the passenger
remained on shipboard, he was to be considered an import, and to belong to foreign commerce,
which import Congress had “regulated” by law, and that any tax on it by a State, was both a tax
upon an import and a regulation of commerce, and was therefore prohibited by each of the
aforesaid clauses of the Constitution. They held, however, that as soon as the passenger leaves
the ship and lands and mingles with the citizens of the State, he becomes a subject of State
taxation. Mr. Justice McLean said, “It is a tax upon a commercial operation-upon what may, in
effect, be called an import. In a commercial sense, no just distinction can be made, as regards the
Law in question, between the transportation of merchandize and passengers. For the
transportation of both, the ship-owner realizes a profit, and each is the subject of a commercial
regulation by Congress. When the merchandize is taken from the ship, and becomes mingled
with the property of the people of the State, like other property, it is subject to the local Law; but
until this shall take place, the merchandise is an import, and is not subject to the taxing power of
the State, and the same rule applies to passengers. When they leave the ship and mingle with the
citizens of the State, they become subject to its Laws”. (7 How. 405.)

Of the other Justices, of the majority, Wayne and McKinley concurred with McLean; and
Catron, in his opinion, also occupied this ground; and with him concurred Grier. Catron said-
“Again, give the argument all the benefit it claims, concede the full municipal power of the State
to tax all persons within her territory, as a general rule, whether they have been there a year or
an hour, and still she could not impose a capitation tax on these passengers, by the hand of her
own tax collector. The tax was demanded while they were on board”. (7 How. 447.) And again,
“It is also insisted that the States may tax all persons and property within their respective
jurisdictions, except in cases where they are affirmatively prohibited. This is a truism not open to
denial. But Constitutional exceptions to the State power, are so broad as to render the claim
valueless in the present instance. States cannot lay export duties, nor duties on imports, nor
tonnage duties on vessels. If they tax the Master and crew, they indirectly lay a duty on the
vessel. If the passengers on board are taxed, the protected goods, the imports, are reached”. (
Ibid. 452.)

*11 The position, then, of the majority is, that the passenger, as long as he remains on
shipboard, continues to be an import and an article of foreign commerce, not taxable by a State;
but as soon as he steps on land and mingles with the citizens, he ceases to be an import, and
ceases to belong to foreign commerce, and becomes taxable by the State on whose shores he
steps. Now, in the case of this “import,” there can be no “breaking of bulk,' no opening of
““““““package,” no “sale by retail or by wholesale,” after it enters the country, to effect this
change. The passenger-import-steps from ship to shore; that makes the transformation. And why
not? there is but one step from the sublime to the ridiculous. But according to Brown vs.
Maryland, something has to be done, after the import gets on shore, before it ceases to be an
import. It does not cease to be one the instant it enters the country. Marshall, C. J. says: “But
while we admit that there must be a point of time when the prohibition ceases, and the power of
the State to tax commences, we cannot admit that this point of time is the instant that the articles
enter the country”. The decision of the majority, in these passenger cases being, that the instant
the import-the passenger-enters the country, he becomes taxable by the State, that decision
necessarily overrules the decision in Brown vs. Maryland.

Is it to be said that from the peculiarity of this import-the dash of the human which it has in it-
the condition as to “breaking package” and so forth, applicable to ordinary imports, to make
them cease to be imports, is to be dispensed with? Be it so; still, there is left enough in the
decision to overrule Brown vs. Maryland. The point of the decision in that case is, that a State
has no power by which it can defeat importations, and that a power to tax the import whilst it is
an import, is a power by which it could defeat importations.

Now, as we have seen, a power to tax the article of import, after it has ceased to be an import,
by being mixed “with the mass of property of the country”, a power to tax it in any of its forms,
divided or undivided, or at any of its stages, including the last stage, that of its consumption, is, if
exerted, just as effective to defeat its importation as is a power to tax it whilst it is in the hands of
the importer, and before it has ceased to be an import; so, a power to tax passengers after they
have landed is, if exerted, equally as effective to keep them from ever landing-from ever thinking
of trying to land-as is a power to tax them before they have landed.

But notwithstanding this, the majority of the Judges consider the State to have the power to
tax the passenger, after he has landed and mingled with its citizens; to have the power to pass a
Law, the effect of which would be, to prevent passengers from landing at all; that is to say, to
have a power by which it can stop immigration-importation. This is in the tush of Brown vs.
Maryland.

*12 [3.] The decisions, therefore, in the passenger cases, overrule Brown vs. Maryland.

[4.] The decision of the Supreme Court of the U.S. in Groves et al. vs. Slaughter, affirms the
principles laid down by the same Court, in the New Hampshire License Case, viz: that as to
commerce between State and State, the States may regulate, provided they do not make any
regulation which shall be in conflict with some regulation of Congress. (15 Peters, 510.) The
question in Groves et al. vs. Slaughter, was as to a State's right to prohibit the introduction of
slaves into its limits, “as merchandize or for sale.” The Court held, Baldwin dissenting, that a
State had this right. And would any one maintain that a State had not equally this right, with
respect to the importation of slaves from Africa or Cuba? Yet, if Brown vs. Maryland be Law, a
State could not do that. That could only be done by Congress.

But if the case of Brown vs. Maryland has not been overruled I think it should be. I consider it
to be a decision not warranted by the Constitution.
 [5.] Whether it is or not, is therefore a question which I now proceed to discuss. In discussing
it, I shall assume one proposition to be true, that the Constitution, like every other instrument
made by men, is to be construed in the sense in which it was understood by the makers of it at the
time when they made it. To deny this is to insist that a fraud shall be perpetrated upon those
makers or upon some of them.

Can the sense in which the makers of the Constitution understood it at the time they made it,
be now ascertained? The Constitution was made by conventions, of the States called for the
purpose of examining its meaning, and of adopting or rejecting it according as they liked that
meaning or disliked it. These conventions were, in the great majority of cases, divided into two
parties, one in favor of adopting the Constitution, and the other against adoption unless it should
be amended. These parties debated the important clauses of the Constitution and otherwise
manifested their sense of its meaning. The proceedings of a large majority of these conventions
are preserved. They are to be found in Elliot's Debates. This, then, is one source from which the
sense in which the makers of the Constitution understood it is to be drawn.

How from this source? It is manifest, that what the party friendly to adoption said, was the
meaning of the Constitution, was the meaning which they understood it to have, was the meaning
which the makers of the Constitution understood it to have; for they being the majority were the
makers of it. Now these debates and proceedings show what the party friendly to the adoption of
the Constitution said was this meaning.

They also contain the acts of ratification and the propositions and recommendations for
amendment of the Constitution-of its makers. These all throw light on the subject.

*13 There are other sources from which evidence may be drawn, such as the contemporary
and continued Acts of the States, showing their view of the meaning of the Constitution, and the
manifestations of popular sentiment about the time of the adoption of the Constitution, or soon
afterwards, and since, showing what the people thought in respect to its meaning.

The question what the makers of the Constitution meant by the instrument which they made,
is eminently a question of fact. It is, in its own nature, in the highest degree historical. To get the
meaning fully, we must have a view of the Act-the actors and the circumstances-we must see the
instrument itself-the makers of the instrument-and the facts standing around the instrument.

I pretend not to see all this-still I think I see some of it, and what I see I shall attempt to bring
forward.

It will appear, I think, from the evidence which I shall produce that the sense in which the
makers of the Constitution understood it, when they made it, is expressed in the following
propositions:

1. That the Constitution delegated to the General Government or any department thereof, no
power by implication, but only delegated such powers as it expressly enumerated.
 2. That it delegated no exclusive power, unless the delegation was said to be exclusive.

3. That it laid no prohibition upon the States, except such as it specified.

4. That the words used in it, if susceptible of more meanings than one, were used in the
meaning which was least favorable to the delegation of power, and most favorable to its
retention.

Let us, then, go to the proofs. And first, to those contained in the debates and proceedings of
the State Conventions which agreed to the Constitution. In these proofs will be found evidence to
apply to all of the four propositions, but exponently to the first, second and third. I shall not, in
every instance, stop to show the application of the evidence to the particular point to which it
will apply.

Let us commence with the convention of Massachusetts.

In this convention, Parsons, a friend to the adoption of the Constitution, and after its adoption,
the most distinguished Judge that Massachusetts ever had, said, “It was objected that by giving
Congress a power of direct taxation, we give them power to destroy the State Governments by
prohibiting them from raising any moneys: but this objection is not founded in the Constitution.
Congress have only a concurrent right with each State in laying direct taxes- not an exclusive
right-and the right of each State is equally extensive and perfect as the right of Congress. Any
law, therefore, of the U.S. for securing to Congress more than a concurrent right with each State
is usurpation and void.” (2 Ell. Deb. 93.)

The paragraph which provides “That the writ of habeas corpus shall not be suspended, unless
in cases of rebellion or invasion” “Was read, when, after a question by Gen. Thompson, Hon.
Mr. Adams, in answer to an inquiry of the Hon. Mr. Taylor, said, that this power, given to the
General Government, to suspend this privilege in cases of rebellion and invasion, did not take
away the power of the several States, to suspend if they shall see fit.” (2 Ell. Deb. 108.)

*14 So Judge Sumner, “Congress have only power to suspend the privilege to persons
committed by their authority. A person committed under the authority of the States will still have
a right to this writ.” ( Id. 109.)

After the debate had come to a close, “Mr. Parsons moved that this Convention do assent to
and ratify this Constitution.”

This motion seems to have been received with doubtful favor. Gen. Heath, after some strong
appeals to the Convention for a union, acknowledged, “But I have observed from the first, that
many gentlemen appeared opposed to the system; and this, I apprehend, arises from their
objections to some particular parts of it. Is there not a way in which their minds may be relieved
from embarrassment? I think there is”. And then he proceeded to state the way which was to
ratify the Constitution as it was, and at the same time propose amendments to it, to meet the
objections to it. (2 Ell. Deb. 122.)
 After Gen. Heath sat down, his Excellency the President, (who was John Hancock) rose and
observed, “That unfortunately, through painful indisposition of body, he had been prevented
from giving his attendance in his place; but from the information he had received, and from the
papers, there appeared to have been a great dissimilarity of sentiments in the Convention. To
remove the objections of some gentlemen, he felt himself constrained, he said, to hazard a
proposition for their consideration. My motive, says he, arises from my earnest desire to this
Convention, my fellow-citizens and the public at large, that this Convention may adopt such a
form of Government as may extend its good influence to every part of the United States, and
advance the prosperity of the whole world. His situation, his Excellency said, had not permitted
him to enter into the debates of the Convention- it however appeared to him necessary, from
what had been advanced in them, to adopt the form of Government proposed; but observing a
diversity of sentiment in the gentlemen of the Convention, he had frequently had conversation
with them on the subject; and from this conversation, he was induced to propose to them whether
the introduction of some general amendments would not be attended with the happiest
consequences. For that purpose, he should, with the leave of the Honorable Convention, submit
to their consideration a proposition, in order to remove the doubts and quiet the apprehensions of
gentlemen.”

He then read his propositions-the first of them was in the following words: “First, that it be
explicitly declared, that all powers not expressly delegated by the aforesaid Constitution, are
reserved to the several States, to be by them exercised.”

These propositions being thus submitted to the Convention, John Adams moved that they
should be taken under considertion by the Convention. (2 Ell. 120, 121, 122, 123, 125.)

*15 He prefaced his motion with a speech, in which these words are to be found: “Mr.
President, I feel myself happy in contemplating the idea that many benefits will result from your
Excellency's conciliatory proposition to this Commonwealth and to the United States; and I think
it ought to precede the motion made by the gentleman from Newberryport, (Parsons, the motion
being to ratify the Constitution) and to be at this time considered by the Convention. I have said
that I have had my doubts of this Constitution. I could not digest every part of it as readily as
some gentlemen; but this sir, is my misfortune- not my fault. Other gentlemen have had their
doubts; but in my opinion, the proposition will have a tendency to remove such doubts, and to
conciliate the minds of the Convention and the people without doors.” “I have observed the
sentiments of gentlemen on this subject, as far as Virginia; and I have found that the objections
were similar in the newspapers, and in some of the Conventions.” (2 Ell. Deb. 123-4.)

This motion was debated; and Mr. Adams again spoke.-He said, among other things, “Your
Excellency's first propotion is, „that it be explicitly declared, that all powers not expressly
delegated to Congress, are reserved to the several States, to be by them exercised.‟ This appears
to my mind to be a summary of a bill of rights, which gentlemen are anxious to obtain. It
removes a doubt which many have entertained, respecting the matter.” “It is consonant with the
second article in the present Confederation.” ( Id. 131.)

Parsons, Dana, Strong and others, warm friends of the Constitution, earnestly urged the
adoption of the proposition.
 At length the proposed amendments were referred to a committee. This committee reported a
form of ratification applicable to the Constitution; and added to the form these words: “And as it
is the opinion of this Convention, that certain amendments and alterations in the said
Constitution, would remove the fears and quiet the apprehensions of many of the good people of
this Commonwealth, and more effectually guard against an undue administration of the Federal
Government, the Convention do therefore recommend that the following alterations and
provisions be introduced into the said Constitution: First, that it be explicitly declared, that all
powers not expressly delegated by the aforesaid Constitution, are reserved to the several States,
to be by them exercised.”

Then follow eight others-then is added: “And the Convention do, in the name and in the
behalf of the people of this Commonwealth, enjoin it upon their representatives in Congress, at
all times, until the alterations and provisions aforesaid have been considered agreeably to the 5th
article of the said Constitution, to exert all their influence, and use all reasonable and legal
methods to obtain a ratification of the said alterations and provisions, in such manner as is
provided in said article.”

*16 The question was then put, whether the Convention would accept of this report; and it
was decided in the affirmative, by a close vote, viz: 187 to 168. ( Id. 176-7-8.)

It is apparent, from these few extracts, that there was a very strong opposition to the
Constitution-one so strong as to make it extremely doubtful whether a majority could be obtained
for its adoption. This opposition, it appears too, all rested on objections which resolve
themselves into this: the State was giving up too much power to the General Government;
especially as there was some room to doubt the extent of some of the grants of power. It is
evident that power was a thing which the Convention wished to give, in the very least possible
quantity; and it is equally evident that they were anxious to remove everything from which the
unscrupulous might argue that they had granted more power than they had actually expressed in
the grant. Hence, they were not satisfied with assurances from the friends of the Constitution,
that the States would have „concurrent‟ power with the General Government, as to taxes; the
habeas corpus, &c.; and that this concurrent power would be “perfect'-that is to say,
notwithstanding assurances that it was necesssarily to be implied that no power was given to the
General Government, except such as was expressly given; and none given exclusively, except it
was said to be exclusive. These friends had to go farther: they had to agree to enjoin it upon their
Representatives in Congress, “To exert all their influence, and use all reasonable and legal
methods to obtain a ratification of said alterations and provisions”, one of which was, as we have
seen, “That it be explicitly declared, that all powers not expressly delegated by the aforesaid
Constitution, are reserved to the several States, to be by them exercised.”

The meaning of this article plainly is, that although it is already, as we think, impliedly
declared that all powers not expressly “delegated” “are reserved”, yet we want it also expressly
declared.

So much for the sense in which Massachusetts understood the Constitution, when she agreed
to it. Let us proceed to Connecticut.
 We have only a fragment of the Connecticut debates on the question of the adoption of the
Constitution. That contains, in all, four or five speeches only; but among them, two of Oliver
Ellsworth, who had been a member of the Convention which framed the Constitution, and who
was to be Chief Justice of the Supreme Court of the United States. He said, “The first objection
is, that this clause, (the power to lay and collect taxes, &c.) extends to all the objects of taxation.
But though it does extend to all, it does not extend to them exclusively. It does not say Congress
shall have all these sources of revenue, and the States none; all excepting the impost, still lie
open to the States”. (2 Ell. Deb. 190.)

*17 Here is an admission, that a grant of a power to tax every person and thing taxable, and to
tax them without limit, is not an exclusive grant-is not a grant of the whole taxing power, but
only of half of it; an admission that, notwithstanding such a grant, as much power is retained as
is granted. That is to say, an admission that although just as much power to tax is given to the
General Government, as by the use of language can be given it; yet, it is not to be implied from
thence that equally as much power is not retained by the States; that unless it were also expressly
said in the Constitution this power is exclusively granted to Congress, or prohibited to the States,
the States have it concurrently. Now if, from such a grant as this, no implication was to be made
in favor of the General Government, or against the States, was not the Convention obliged to
infer that such an implication could not be made from any merely affirmative grant; such, for
instance, as the grant to regulate commerce.

Taking, then, Judge Ellsworth as a true exponent of the idea of the Constitution entertained by
the Convention of Connecticut, we must say that that idea was much the same as the idea of the
Massachusetts Convention. Let us pass to N. Hampshire.

We have no debates of the Convention of this State, and only the fragments of one speech,
and that confined to the slavery clause; but we have, in the form of ratifying the Constititution,
matter from which we may infer what was the understanding of the Convention, as to the
meaning of the Constitution when they agreed to it. They adopt the Massachusetts form,
including the proposed amendments and the injunction upon their members in Congress, to use
their best efforts to get the amendments made. They, therefore, had the same understanding, as to
this meaning, which Massachusetts had. And what that was we have seen. (1 Ell. Deb. 325, ′6.)

Let us, then, come to the great State of N. York.

The question of adopting the Constitution, was ardently debated in the Convention of this
State, and the division of parties on it, was almost equal.

The friends of adoption urged, in respect to the great power of taxation, that it would be
concurrent. To this, Williams, an opposer of adoption, answered, “Suppose, however, that the
States have concurrent jurisdiction with Congress, in taxation, it is evident, as the Laws of
Congress are the Supreme Laws of the land, that their taxes, whenever they interfere with the
taxes laid by the States, must and will claim a priority as to the collection; in fact, that they may,
in order to pass the Laws necessary for the end, abolish the State taxes”.
 This brought Alexander Hamilton to his feet. He combatted this idea most vehemently. He
said, “With regard to the jurisdiction of the two Governments, I shall certainly admit that the
Constitution ought to be so formed as not to prevent the States from providing for their own
existence; and I maintain that it is so formed. This is conceded by one gentleman, and in the next
breath the concession is retracted. He says Congress have but one exclusive right in taxation; that
of duties on imports. Certainly, then, their powers are only concurrent. But to take off the force
of this obvious conclusion, he immediately says that the laws of the U.S. are supreme, and that
where there is one supreme, there can be no concurrent authority. And further, that where the
Laws of the Union are supreme, those of the State must be subordinate, because there cannot be
two supremes. This is curious sophistry. That two supremes cannot act together is false. They are
inconsistent only when aimed at each other, or at an indivisible object. The Laws of the United
States are Supreme, as to all their proper Constitutional objects. The Laws of the States are
supreme in the same way. Suppose both Governments should lay a tax of a penny on an article,
had not each an independent and uncontrollable power to collect its own tax? The meaning of the
maxim-there cannot be two supremes-is simply this: two powers cannot be supreme over each
other”. That is to say, that with respect to one concurrent power, that of taxation, the General
Government cannot be supreme over the State Governments, nor the latter supreme over the
former; and if this is true of one such power, it is true of all; and as nearly all of the granted
powers are such, it must be true of nearly all the granted powers-Legislative, Executive and
Judicial. This inference was too obvious for the Convention not to have made it.

*18 This touch of State rights was displayed, it is to be remembered, however, before the
Constitution was adopted; and in order to make it palatable to the States, and so get them to
swallow it. (2 Ell. Deb. 355, ′6.)

Not satisfied with this, he returns to the subject next day. He enlarges; he becomes more
emphatic; he illustrates, and he generalizes. The speech is a most noteworthy one. I shall indulge
myself in citing it somewhat fully. He says- “Sir, with respect to the subject of revenue, which
was debated yesterday, it was asserted, that in all matters of taxation except in the article of
imposts, the united and individual States had a concurrent jurisdiction, and that the State
Governments had an independent authority to draw revenues from every source but one. The
truth of these positions will appear on a slight investigation. I maintain that the word supreme
imports no more than this: that the Constitution and Laws, made in pursuance thereof, cannot be
controlled or defeated by any other Law. The Acts of the United States, therefore, will be
absolutely obligatory, as to all the proper objects and powers of the General Government. The
States, as well as individuals, are bound by these Laws; but the Laws of Congress are restricted
to a certain sphere, and when they depart from this sphere, they are no longer supreme or
binding. In the same manner, the States have certain independent powers, in which their Laws
are supreme; for example, in the making and executing Laws concerning the punishment of
certain crimes, such as murder, theft, &c. the States cannot be controlled. With respect to certain
other objects, the powers of the two Governments are concurrent, and yet supreme. I instanced,
yesterday, a tax on a specific article. Both might lay the tax-both might collect it, without
clashing or interference. If the individual should be unable to pay both, the first seizure would
hold the property. Here, the Laws are not in the way of each other; they are independent and
supreme.
 “The case is like that of two creditors: each has a distinct demand; the debtor is held equally
for the payment of both. Their suits are independent, and if the debtor cannot pay both, he who
takes the first step secures his debt. That the States have an undoubted right to lay taxes in all
cases in which they are not prohibited, is a position founded on the obvious and important
principle in Confederated Governments, that whatever is not expressly given to the Federal
Head, is reserved to the members. The truth of this principle must strike every intelligent mind.
In the first formation of Government, by the association of individuals, every power of the
community is delegated, because the Government is to extend to every possible object; nothing
is reserved but the inalienable rights of mankind; but when a number of these societies unite for
certain purposes, the rule is different, and from the plainest reason; they have already delegated
their sovereignty and their powers to their several Governments; and these cannot be recalled and
given to another, without an express Act. I submit to the committee, whether this reasoning is
not conclusive”. ( Ibid, 361, ′2, ′3.)

*19 This is plain talk. “Whatever is not expressly given to the Federal head is reserved to the
members”. This is applicable not merely to the tax clause. It covers the whole of the powers
spread out in the Constitution. And it comes from the very highest quarter. Col. Hamilton was
the first man of his day of his party. He had been too a member of the Federal convention which
framed the Constitution, and he entirely knew, as much as any living man, what were the
purposes and objects of those who were the chief architects of that instrument in that
Convention, as well as what were the fears and doubts of those who were not its chief architects.
And in order to get the great State of New York to adopt it when the question of adoption is a
touch and go one, he tells it in his place in this manner so passionately earnest that the
Constitution conveys to the General Government no power except such as is expressly granted.
Can falsehood be imputed to Alexander Hamilton? If it cannot, this was the truth of the case, for
he was not deceived himself.

But if he were, can there be a doubt that such a declaration as this did not make its impression
on those who heard it-that in a word, in adopting the Constitution, the adopters did not take it as
having this meaning. And if they so understood it and were made so to understand it by him and
his friends (for none of those uttered a word of dissent) so it is to be understood.-That is the
meaning which they agreed to.

What was said by Chancellor Livingston and by John Jay went to confirm these declarations
of Hamilton's. (2 Ell. Deb. 346, 381.)

Even with all this the Convention could barely be induced to agree to the Constitution. The
vote was thirty-nine in favor of it to thirty-six against it. And the ratification itself was
exceedingly circumspect and guarded. It was preceded by a declaration of principles generally,
and of principles applicable especially to the instrument they were about to agree to. It declared,
among other things, “That the powers of Government may be re-assumed by the people
whensoever it shall become necessary to their happiness, that every power, jurisdiction and right
which is not by the said Constitution clearly delegated to the Congress of the United States, or
the departments of the government thereof remains to the people of the several States, or to their
respective State governments, to whom they may have granted the same, and that those clauses
of the Constitution which declare that Congress shall not have or exercise certain powers, do not
imply that Congress is entitled to any powers not given by said Constitution, but such clauses are
to be construed either as exceptions to certain specified powers, or as inserted merely for greater
caution”. That is, no power is to be held to be conveyed by implication.

After going through with the declaration of rights, the form of ratification proceeds thus:
“Under these impressions, and declaring that the rights aforesaid cannot be abridged, and that the
explanations aforesaid are consistent with the said Constitution”, &c. We do assent to and ratify
the said Constitution.

*20 Now, the question is, did the New York Convention, in agreeing to the Constitution,
think it was giving away to the General Government more of the power of New York State than
Alexander Hamilton told them they were giving- more, in a word, than they were asked to give?
They were told by Hamilton that it is an “Obvious and important principle in confederated
governments, that whatever is not expressly given to the Federal head, is reserved to the
members.” The Convention then was only requested to give such powers as were expressed and
no others. This was the extent of the request. Is it to be presumed that the Convention,
exceedingly suspicious as they were of the Constitution, at first gave more than they were
requested to give?

If by any possible straining of words that could be presumed, the presumption would be
rebutted by the form of the ratification. When this form says “That those clauses in the said
Constitution which declare that Congress shall not have or exercise certain powers, do not imply
that Congress is entitled to any powers not given by the said Constitution.” It says that no clauses
in it shall do this; for if an implication of a grant cannot be drawn from these clauses, still less
can it be drawn from any other: and this is the same as saying that no implied power is granted to
Congress: but only express powers are granted.

This, then, is what New York understood she was doing, when she agreed to the Constitution,
viz: that she was giving to the General Government the powers expressed in the instrument, but
no others-not one implied power; and that she was giving no expressed power exclusively, unless
it was said to be exclusive.

Let us pass on to another State's proceedings, Pennsylvania.

In the Convention of this State for ratifying the Constitution, the friends of the Constitution
seem to have had the field of debate pretty much to themselves-and of those friends, Judge
Wilson, who had been a leading member of the Federal Convention which framed the
Constitution, the member who, probably, next to Madison, had the greatest share in framing it as
it was framed, appears to have been eminently conspicuous.

McKean, who was afterwards Chief Justice of the State, made a speech or two. One of his
speeches was elaborate and careful. I shall quote from him and Wilson to show what meaning
they told the Convention the Constitution had when persuading the Convention to agree to it.

In this Convention, as in those of the other States which have been noticed, it seems to have
been a prominent objection to the Constitution that it contained no bill of rights. In answer to
this, Wilson says in one place, “It is urged as a general objection to this system that the powers
of Congress are unlimited and undefined, and that they will be the judges in all cases of what is
necessary and proper for them to do.” “To bring this subject to your view, I need do no more
than point to the words in the Constitution, beginning at the 8th Sec. Art. 1st. “The Congress (it
says) shall have power,” &c. I need not read over the words, but I leave it to every gentleman to
say whether the powers are not accurately and minutely defined as can well be done on the same
subject in the same language. The old Constitution is as strongly marked on this subject, and
even the concluding clause, with which so much fault has been found, gives no more or other
powers, nor does it in any degree go beyond the particular enumeration; for when it is said that
Congress shall have power to make all laws which shall be necessary and proper, those words
are limited and defined by the following: “For carrying into execution the foregoing powers”. It
is saying no more than that the powers which we have already particularly given shall be
effectually carried into execution.” (2 Ell. Deb. 468.) And again, “ Eodem die P. M. he said,
“Whoever views the matter in a true light, will see that the powers are as minutely enumerated
and defined as was possible, and will discover that the general clause against which so much
exception is taken, is nothing more than what was necessary to render effectual the particular
powers that are granted. And again “Can any cause of distrust arise here? Is there any increase of
risk? or rather are not the enumerated powers as well defined here as in the present articles of
Confederation? ( Ibid. 481, 2.)

*21 Now be it remembered that the “present articles of confederation” had in them this
distinct article:

ARTICLE II.

Each State retains its sovereignty, freedom and independence, and every power, jurisdiction
and right which is not by this Confederation expressly delegated to the United States in Congress
assembled”.

Judge Wilson then means to persuade the Convention he is addressing, that although this
clause is not contained in the new instrument, yet the powers intended to be delegated by that
instrument are no greater or other than they would be if it were contained in the instrument-
agreeing, doubtless, with Hamilton, that “In Confederated Governments, whatever is not
expressly given to the Federal head, is reserved to the members.”

Indeed, all the rest of what has been quoted from him and much more that has not been
quoted, amounts to the same thing. Could the Convention be supposed to doubt Wilson in
respect to this point? especially when he was seconded by Judge McKean in this style. As to the
objection that there was no bill of rights, Judge McKean said “Again, because it is unnecessary;
for the powers of Congress being derived from the people in the mode pointed out by this
Constitution, and being therein enumerated (that is, expressed ONE BY ONE) and positively
granted, can be no other than what this positive grant conveys. ( Locke on Government, vol. ii b.
2, chap. 2. sec. 140, and in the 13 th chap. sec. 152. 2 Ell. Deb.)
 With this exposition of the meaning of the Constitution, by these two distinguished friends of
it, (Wilson was afterwards a Judge of the Supreme Court of the U. S.) the Con vention of
Pennsylvania adopted it. And can it be doubted that the Convention understood the Constitution
in this sense.

Let us pass to another State, N. Carolina. In the Convention for ratifying the Constitution in
that State, Mr. Maclaine, replying to those who objected to the Constitution, that it contained no
bill of rights, said, “It would be very extraordinary to have a bill of rights, because the powers of
Congress are expressly defined, and the very definition of them is as valid and efficacious a
check, as a bill of rights could be, without the dangerous implication of a bill of rights. The
powers of Congress are limited and enumerated again: “It is as plain a thing as possibly can be,
that Congress can have no power, but what we EXPRESSLY give them. (4 Ell. Deb. 140-1.)

Gov. Johnston, the President of the Convention, in answer to the same objection, said, “The
Congress cannot assume any other powers than those expressly given them, without a palpable
violation of the Constitution. ( Ibid, 142.)

Judge Iredell, who had been a member of the Federal Convention, for drafting the
Constitution, and who was to become a Judge of the Supreme Court of the U.S., and who was in
himself, a man of clear head, replying to the same objection, said, “Of what use therefore, can a
bill of rights be in this Constitution, where the people expressly declare how much power they do
give; and consequently retain all they do not? It is a declaration of particular powers by the
people to their representatives for particular purposes. It may be considered as a great power of
attorney, under which no power can be exercised, but what is expressly given. Did any man ever
hear before, that at the end of a power of attorney, it was said the attorney should not exercise
more power than was there given him.” Is not this the true idea of all Constitutions? They are
instruments by which principals - people-confer power-powers upon servants, agents, presidents,
members of Congress-Judges. These have but a naked authority -one coupled with no interest-
one founded on no consideration; one, therefore, which is to be construed strictly. In a dispute
between the principal and agent, as to the meaning of the power of attorney, does it lie in the
mouth of the agent, to pronounce what is the meaning? Just the opposite. The principal may, at
will, revoke the whole power; may he not, then, do the lesser thing-interpret its meaning?

*22 In spite, however, of all that the friends of the Constitution could say, the Convention
actually rejected it, by a great majority-by 184 to 84.

The Convention determined that the Constitution ought to be amended, before it should be
agreed to by N. Carolina; and that it ought to be amended so as to contain these, among other
things:

“1. That each State in the Union shall respectively retain every power, jurisdiction and right
which is not, by this Constitution, delegated to the Congress of the United States, as to the
departments of the Federal Government.”

“17. That those clauses which declare that Congress shall not exercise certain powers, be not
interpreted in any manner to extend the power of Congress; but that they be construed either as
making exceptions to the specified powers where this shall be the case, or otherwise, as inserted
merely for greater caution.” ( Id. 244-6.)

Notwithstanding that the friends of the Constitution told the Convention that this was all that
the Constitution meant as it stood unamended, the majority would not be satisfied, but insisted
upon having it so nominated in the bond.

Afterwards N. Carolina, by Convention, agreed to the Constitution. But it is not to be

presumed that she considered the Constitution to convey to the General Government more
powers than its friends, Maclain, Johnston and Iredell, being the spokesmen, represented it to
convey; that is to say, more than the express powers.

We have only three or four speeches made in the Convention of South Carolina, which
ratified the Constitution; and they not very pertinent to the point under consideration. But we are
at no loss to know what that State considered herself as giving to the General Government, when
she agreed to the Constitution. We may know this from two sources. First, from the form of
ratification. The ratification was preceded by this declaration, “This Convention doth also
declare, that no section or paragraph of the said Constitution warrants a construction that the
States do not retain every power not expressly relinquished by them, and vested in the General
Government of the United States”. (1 Ell. Deb. 325.)

Second. From the action and debates of the Legislature which called the State Convention for
ratifying the Constitution. That Legislature debated the Constitution itself, at considerable length,
before it would ever make a call of such a Convention. That Legislature was composed of some
of the first men of the State. Among them were Charles Pinckney, Charles Cotesworth Pinckney,
John Rutledge and Pierce Butler, the members from South Carolina to the Federal Convention
which drafted the Constitution. These were all friends of the Constitution. In persuading the
Legislature to make the call, and in answer to objections to the Constitution, that it does not
guaranty liberty of the press, Gen. Pinckney said, “The General Government has no powers but
what are expressly granted to it”. (4 Ell. Deb. 315.) No friend of the Constitution said nay to
this. The Legislature, therefore, determined to call the Convention, and did call it; and that
Convention agreed to the Constitution, in the manner above stated.

*23 The S. Carolina Convention then took the Constitution to convey only express powers.

Rhode Island, like N. Carolina, would not, for a long time, accept the Constitution at all.
When she did accept it, she accompanied the act with certain explanations and declarations;
which explanations she declared to be consistent with the Constitution. Among them was this:
“That the rights of the States, respectively to nominate and appoint all State officers, and every
other power, jurisdiction and right, which is not, by the said Constitution, clearly delegated to the
Congress of the U.S., or to the departments of the Government thereof, remain in the people of
the several States, or their respective State Governments, to whom they may have granted the
same; and that those clauses in the Constitution, which declare that Congress shall have or
exercise certain powers, do not imply that Congress is entitled to any power not given by the
Constitution; but such clauses are to be construed as exceptions to certain specified powers, or as
inserted merely for greater caution.”
 Rhode Island, like the rest, thought, in agreeing to the Constitution, she was giving only such
powers as she mentioned expressly.

Let us pass to the great State of Virginia.

It was only after a mighty struggle, that the friends of the Constitution could induce the
Convention of Virginia to adopt the Constitution at all. Patrick Henry, George Mason, James
Monroe, Grayson, and other distinguished men opposed its adoption, without previous
amendments. Pendleton, Nicholas, Randolph, Marshal, afterwards C. Justice of the S. Court of
U.S., Madison, and others of note, urged its adoption. After a protracted debate, and pledges on
the part of its friends, that certain amendments should be made to it, if they could cause that to be
done, it was accepted; but with a declaration accompanying the act, showing very clearly, that
the Convenvention did not consider the Constitution as conferring on the General Government
any powers but those expressed in it.

But what power did its friends say it conveyed, when they were engaged in the business of
persuading the Convention to take it? Let them speak for themselves.

Mr. Tyler had said-“Suppose that the time should come that a King should be proposed by
Congress? Will they not be able, by the sweeping clause, to call in foreign assistance and do
whatever they think proper, to carry this proposition into effect?

To this Mr. Madison replied, “With respect to the supposed operation of what was
denominated the sweeping clause, the gentleman, he said, was mistaken; for it only extended to
the enumerated powers. Should Congress attempt to extend it to any power not enumerated, it
would not be warranted by the clause”. (3 Ell. Deb. 455.)

The “sweeping clause” is the one which declares that Congress “Shall have power to make all
Laws which shall be necessary and proper for carrying into execution the foregoing power”, &c.

*24 What Mr. Madison says, amounts, then, to this: that this clause does not give Congress
power to make any Law for carrying into execution any power that is not “enumerated” in the
Constitution: that is to say, for carrying into execution any implied power.

And this is the same as saying the Congress has no implied powers at all; far it is saying, that
if they have implied powers, they yet have no power to carry them into effect-the clause giving
Congress power to carry powers into effect, not extending to implied powers.

Again he said, “As to a solemn declaration of our essential rights, he thought it unnecessary
and dangerous-unnecessary, because it was evident that the General Government had no power
but what was given it, and dangerous because an enumeration which is not complete, is not
safe”.

Now, a “declaration” or enumeration of reserved rights, could not be said to be unnecessary,

unless there was an enumeration of delegated rights; saying, then, that such declaration or
enumeration of reserved rights was unnecessary, Mr. Madison said that there was an
enumeration, a counting out, one by one, of the delegated powers.

So, such enumeration or “declaration” of reserved rights, would only be ““dangerous,”

because an enumeration of reserved rights would give ground to the implication that all rights
not enumerated, were delegated, and a complete enumeration of reserved rights, is a difficult
thing to accomplish; whereas, if the delegated powers are the ones that are enumerated, as is the
case with the Constitution, as it stands, the implication will be that all powers not enumerated are
reserved. Mr. Madison said to the Convention, in effect, adopt the Constitution as it stands-you
give away no power that you do not enumerate.

Gov. Randolph's testimony is most explicit and detailed on this point. He says, “Permit me to
return to that clause which is called by gentlemen the sweeping clause. I observed, yesterday,
that I conceived the construction which had been put on this clause by the advocates of the
Constitution, was too NARROW, and that the construction put upon it by the other party, was
extravagant. The former contend that it gives no supplementary power, but only enables them to
make Laws to execute the delegated powers; or in other words, that it only involves the powers
incidental to those expressly delegated. By incidental powers, (the italics are his,) they mean
those which are necessary for the principal thing”. This is Gov. Randolph's testimony as to what
the advocates of the Constitution told the Convention it meant. He, himself, was hardly to be
called an advocate of it. He spoke against it and voted against it in the Federal Convention, of
which he was a member. Still, he went for ratifying it in this, the Virginia Convention. He,
therefore, is as good a witness as could be, with reference to what the friends of the Constitution
represented to be its meaning, when trying to get it ratified.

*25 He then says, “Let me say that, in my opinion, the adversaries of the Constitution wander,
equally, from the true meaning. The gentleman supposes that complete and unlimited Legislation
is vested in the Congress of the United States. This supposition is founded on false reasoning.
There is not a word said in the State Government, of the powers given to it, because they are
general: but in the general Constitution the powers are enumerated. Is it not, then, fairly
deducible, that it has no power but what is expressly given it? for if its powers were to be
general, an enumeration would be needless.

“But the insertion of the negative restrictions, (that is, on Congress,) has given cause of
triumph, it seems, to gentlemen. They suppose that it demonstrates that Congress are to have
powers by implication. I will meet them on that ground. I persuade myself that every exception
here mentioned, is an ex ception, not from general powers, but from the particular powers
therein vested”.

He then goes through with every restriction on Congress, and shows that it is an exception out
of some expressly delegated power, and out of no implied power. Here is a specimen of his style
of doing this: “To what power in the General Government is the exception made, respecting the
importation of negroes? Not from a general power, but from a particular power, expressly
enumerated. This is an exception from the power given them, of regulating commerce”. He asks,
“Where is the power to which the prohibition of suspending the habeas corpus is an exception? I
contend, that by virtue of the power given to Congress, to regulate Courts, they would suspend
the writ of habeas corpus. This is, therefore, an exception to that power”. (3 Ell. Deb. 463, ′4.)

Thus, he labors through these restrictions on Congress, to the end, insisting that even from
them, it was not to be inferred that Congress was to have any implied power, or any power,
except enumerated powers.

So George Nicholas, “But it is objected to for want of a bill of rights. It is a principle

universally agreed upon, that all powers not given, are retained”. That he means all not expressly
given, we shall see. “In England, in all disputes between the King and people, recurrence is had
to the enumerated rights of the people to determine. Are the rights in dispute reserved? Are they
included in Magna Charta, Bill of Rights, &c.? If not, they are, generally speaking, within the
King's prerogative. In disputes between Congress and the people, the reverse of the proposition
holds. Is the right enumerated? If not, Congress cannot meddle with it”.

“Which is the most safe? the people of America know what they have relinquished for certain
purposes. They also know that they retain everything else, and have a right to resume what they
have given up, if it be perverted from its intended object”. ( Ibid, 246.)

*26 But even these great names, speaking for the friends of the Constitution, were not enough
to satisfy the Convention on this point of implied power. John Marshall, subsequently to become
Chief Justice of the U. S. had to take the stand and bear witness, too, on the point. He spoke on
the particular question, of the power of Congress over the Militia. He said, “Could any man say
that this power was not retained by the States, as they had not given it away? For, says he, does
not a power remain until it is given away”?

“For Continental purposes, Congress may call forth the militia; as to suppress insurrections
and repel invasions. But the power given to the States by the people, is not taken away, for the
Constitution does not say so. In the Confederation, Congress had this power, but the State
Legislatures had it also. The power of Legislating, given them in the Ten Miles Square, is
exclusive. ALL the restraints intended to be laid on the State Governments, (besides where an
exclusive power is expressly given to Congress,) are contained in the 10th Section of the 1st
Article. This power, (the Militia Power,) is not included in that section”. (3 Ell. Deb. 419.)

Now, here, Judge Marshall goes this far, at least: that there is nothing in the Constitution from
which you can imply any restriction upon the States. The restrictions upon the States are all
expressed. We shall see, that when he asks the question, “Does not a power remain until it is
given away”? he means to say, until it is expressly “given away”.

For, afterwards, in speaking on the Judicial powers delegated by the Constitution, he says:
“Has the Government of the U. States power to make Laws on every subject? Does he
understand it so? Can they make Laws concerning the mode of transferring property, or
contracts, or claims, between citizens of the same State? Can they go beyond the delegated
powers? If they were to make a Law not warranted by any of the powers enumerated, it would be
considered, by the Judges, as an infringement of the Constitution which they are to guard. They
would not consider such a Law as coming under their jurisdiction; they would declare it void”. (
Ibid, 553.)

John Marshall then told the Convention of Virginia, to induce it to accept the Constitution,
that the Constitution meant only this: to give from the States to the General Government, such
powers as it “ enumerates”-as it counts out to that Government-no more.

Under such assurances, from such quarters, the Convention ratified the Constitution, but they
did it in such a way as to show that they understood the Constitution to give the General
Government no other powers than such as were expressed in it.

*27 The Convention said, “We, the delegates, &c. do declare and make known, that the
powers granted under the Constitution, being derived from the people of the United States, be
resumed by them whensoever the same shall be perverted to their injury or oppression, and that
every power not granted, thereby remains with them and at their will. That, therefore, no right,
of any denomination, can be cancelled, abridged, restrained or modified, by the Congress; by the
Senate or House of Representatives, acting in any capacity; by the President; or any department,
or officer of the United States, except in those INSTANCES in which power is given, by the
Constitution, for those purposes, &c. With these impressions, &c. we do assent to and ratify the
Constitution”.

Now, the word “instances” means here, specified cases- enumerated cases. This is too plain to
admit of a doubt. The Convention so understood it. Madison certainly did. ( Id. 620.)

But the Convention did not stop here. They, at the same time, proposed certain amendments
to the Constitution, to put this matter beyond doubt. Among the amendments was one to the
effect that each State retains every power which is not delegated. Another, “That those clauses
which declare that Congress shall not exercise certain powers, be not interpreted, in any manner
whatsoever, to extend the powers of Congress; but that this may be construed either as making
exceptions to the specified powers, where this shall be the case or otherwise, as inserted merely
for greater caution”.

And the Convention enjoined it upon “Their Representatives in Congress, to exert all their
influence and use all reasonable and legal methods, to obtain a ratification of the amendments”.

Virginia, therefore, when she agreed to the Constitution, understood it in the sense in which it
was understood by the other States, viz: as an instrument delegating no powers but those
expressed in it, and as one to be construed strictly.

Let us pass to Georgia. We have no evidence of the doings of the Convention of this State,
which ratified the Constitution, except, simply, the ratification itself. But we have numerous Acts
and Declarations of the State, some of them almost contemporaneous with the ratification, which
tell the mind of Georgia, on the subject, more emphatically, if possible, than the mind of any of
the other States is told, by the records of their Conventions. These, I shall call to my aid.
 The first Act of Georgia, to which I shall refer, will be her denial of jurisdiction to the
Supreme Court of the United States, in a case which was brought against her in that Court. It was
the case of Chisholm, Ex'r, against Georgia.

“This action was instituted in August Term, 1792. On the 11th of July, 1792, the Marshall, for
the District of Georgia, made the following return: Executed as within commanded; that is to
say, served a copy thereof, on His Excellency, Edward Telfair, Esq. Governor of the State of
Georgia, and one other copy on Thomas P. Carnes, Esq. the Attorney General of said State.
ROBERT FORSYTH, Marshall”.

*28 Georgia did not appear in the case. The plaintiff then moved, that unless the State, after
reasonable notice of that motion, should cause an appearance to be entered for her, or shew cause
to the contrary, judgment should be entered against her, and a Writ of Enquiry of Damages be
awarded.

Ingersoll and Dallas presented a written remonstrance and protestation, on behalf of the State,
against the exercise of jurisdiction in the cause; but in consequence of positive instructions, they
declined taking any part in arguing the question. (2 Dall. 419.)

It was argued by the Counsel for the plaintiff. The Judges were not unanimous in opinion.
The majority, consisting of Jay, C. J., Wilson, Blair and Cushing, Justices, held that the Court
had jurisdiction. Justice Iredell, in a very able opinion, dissented and held that a State could not
be sued.

The ground upon which the majority put their decision was, the words of the Constitution-
“The Judicial power of the United States shall extend to controversies between a State, and
citizens of another State”. The Chief Justice says, “It is contended that this ought to reach none
of those controversies, excepting those in which a State may be plaintiff”. But in answer to that
he maintains, first, that the words are to be construed liberally, as they are remedial. Then he
says, “If we attend to the words, we find them to be express, positive, free from ambiguity, and
without room for such implied expressions” (exceptions.) ( Ibid, 476.)

So the Court “ Ordered, that unless the said State shall either in due form appear, or shew
cause to the contrary, in this Court, by the first day of next Term, judgment, by default, shall be
entered against the said State”. The reporter adds, in a note, that “In February Term, 1794,
judgment was rendered for the plaintiff, and a Writ of Enquiry awarded. The writ, however, was
not sued out and executed; so that this cause, and all of the other suits against States, were swept,
at once, from the records of the Court, by the amendment of the Federal Constitution. ( Ibid,
480.)

Georgia treated the Court with contempt, in respect to this case. Her position was, that the
Court had no jurisdiction of her as a party. Georgia maintained that the words “The Judicial
power of the United States, shall extend to controversies between a State and citizens of another
State,” were not to be construed to extend to controversies in which a State might be defendant;
but only to those in which a State might be plaintiff-why? obviously because 1. It is not expressly
said in those words, that the power shall extend to controversies in which a State may be
defendant, and in the opinion of Georgia, no department of the General Government had any
power but such as was expressly given it in the Constitution. 2. Because, even if it is, in these
words, expressly said that the power shall extend to controversies, in which a State may be
defendant, yet these words admit of another and a narrower meaning, namely, one which restricts
the power to controversies in which a State may be the plaintiff. And they ought to be held to
have that meaning, as in the opinion of Georgia even express grants of power in the Constitution,
ought to be construed with the utmost strictness.

*29 Georgia, then, in this case, which happened in 1792, three or four years only after the
adoption of the Constitution, held that no power was given by the Constitution, but what was
expressly given; and that what was expressly given, was to be construed strictly. It is true, this
position of her's was taken in reference only to a single power-a Judicial power. But the reasons
of the position are general. To be applicable to the particular power in the case, they have to be
large enough to be equally applicable to all of the other powers delegated in the Constitution.

Now, in this position, Georgia triumphed. First. The judgment against her fell dead. The
plaintiff in the case, himself, did not so much as have his Writ of “Enquiry' executed. He
obtained the judgment, by default, in 1794. Nothing more was done in the case until 1798-after
the amendment of the Constitution had been made, when this and other similar cases were
“swept from the records.”

Secondly. This amendment, itself, vindicated the truth of her position. The language of it is
peculiar. “The Judicial power of the United States, shall not be construed to extend to any suit in
Law or Equity, commenced or prosecuted against one of the United States, by citizens of another
State, or by citizens or subjects of any foreign State.” It is an amendment not to alter the
Constitution, but to keep it unaltered. It is a rebuke to the Supreme Court, for daring to change
the Constitution, under pretence of construing it-for daring to hold that the Constitution was not
to be strictly construed, even in the case of the remedial powers which it delegates, and the
Judicial powers.

Now this amendment speaks the sense of two-thirds of both branches of Congress, and the
sense of the whole people of every State that was in the Union, at the time when it was made, as
to the proper construction of the entire Constitution. For if a strict construction is the rule as to a
Judicial power, which is in its nature remedial, much more is it the rule in reference to every
other power. It is true that the language of the amendment is not general, but is confined to suits
against a State. And for this, there was a good reason. The mischief was no broader. The
Supreme Court had made no other false construction than the one as to the power of suing a
State.- After the rebuke of that, was it to be presumed that it would ever offend again in a case of
construction?

The next act to which I shall refer is the denial, by Georgia, of jurisdiction to the Supreme
Court in the cases of Worcester and Butler vs. Georgia, to be found reported in 6 Peters 515.
The question in those cases was, whether an appeal lay from the Superior Courts of Georgia to
the Supreme Court of the U. S.; whether, in other words, the 25th section of “The Act to
establish the Judicial Courts of the United States,” passed in 1789, which gives to the Supreme
Court of the United States the power of revising and reversing judgments and decrees of State
Courts is Constitutional?

*30 In these cases, Worcester and Butler were indicted, convicted and put in the peniteniary,
for violating the Laws of Georgia, which forbade white persons to reside within the Cherokee
Nation of Indians without permission from the Governor, and without having taken an oath to
support and defend the Constitution and Laws of Georgia, and uprightly demean themselves as
citizens thereof. The case occurred in the Superior Court of Gwinnett County. A writ of error
was issued from the Supreme Court of the U. S. on the application of the defendants, to the
Judges of the Superior Court, for the county of Gwinnett. The Clerk of that Court returned a
transcript of the cases to the Supreme Court of the U. S. But the Judge of the Court had nothing
to do with this act of the Clerk. He did not recognize the right of the Supreme Court to issue the
writ.

The Supreme Court of the U.S., by Marshall C.J., said that it was “too clear for controversy,
that the Act of Congress, by which this Court is constituted, has given it the power, and of course
imposed on it the duty, of exercising jurisdiction in this case.”

Accordingly, that Court took jurisdiction and “adjudged that the judgment rendered in the
premises by the said Superior Court of Georgia,” whereby the said Samuel A. Worcester is
sentenced to hard labor in the penitentiary of Georgia, ought to be reversed and annulled, “and
further” adjudged that said judgment “be and hereby is reversed and annulled” “and that a
special mandate do go from this Court to the said Superior Court, to carry this judgment into
execution.” The judgment was the same in the Butler case.

Now what did Georgia do on receipt of this special mandate? Through every department of
her Government she treated the mandate, and the writ of error with contempt the most profound.
She did not even protest against jurisdiction as she had done in the case of Chisholm's Ex'r. But
she kept Worcester and Butler in the peniteniary, and she executed in the Creek Nation the Laws,
for violating which, they had been put in the penitentiary.

And what inference is to be drawn from this course on her part?

In the opinion of the Supreme Court, the cases were too clearly within the 25th section of the
Act of 1789 to admit of a doubt as to the jurisdiction of the Court. Yet Georgia said the Court
had no jurisdiction. If, then, the cases were within the Act, the only question is, did Congress
have power, under the Constitution, to pass the Act? Georgia, by holding that the Court had no
jurisdiction, held that Congress had no such power. Now to hold this, what is the rule of
construction which she must have considered applicable to the Constitution? The strict rule-the
rule which allows the delegation of no power by implication-the rule which restricts words to the
narrowest meaning in the cases of expressly delegated powers.

*31 The Constitution says that “The Judicial power shall extend to all cases in Law and
Equity arising under this Constitution, the Laws of the United States, and treaties made, and
which shall be made, in pursuance thereof,” &c. It enumerates other cases. It says, “In all the
other cases before mentioned (those affecting ambassadors being the excepted ones) the Supreme
Court shall have appellate jurisdiction”.

Now it is not mentioned what Courts, whether State or Federal, this appellate jurisdiction is to
apply to. It is not expressly said that it is to apply to State Courts. Therefore, says Georgia, it
does not apply to State Courts, and therefore the Act of 1789, as far as it attempts to extend this
jurisdiction to State Courts, is unconstitutional and void.

It was not only in this case that Georgia occupied this position-she did it in two other cases,
and those cases of life and death-the case of Tassels and that of Graves. One of these happened
before these cases of Worcester and Butler, namely, in 1830, the other afterwards in 1834. The
Supreme Court had issued writs of error in each of these cases on the application of the
defendants to the State of Georgia. But as the cases are not reported, it is to be presumed that
these writs never got back to the Supreme Court; or, that if they ever did, it was too late. It is
certain that Georgia hung the applicants for the writ.

In the Tassels case, the Legislature passed these, among other resolutions.

Resolved, That the State of Georgia will never so far compromit her sovereignty, as an
independent State, as to become a party to the case sought to be made before the Supreme Court
of the United States, by the writ in question.

“ Resolved, That His Excellency, the Governor, be and he and every other officer of this
State, is hereby requested and enjoined to disregard any and every mandate and process that has
been, or shall be served on him or them, purporting to proceed from the Chief Justice, or any
associate Justice, or the Supreme Court of the United States, for the purpose of arresting the
execution of any of the criminal Laws of this State.”

The resolutions were signed by Asbury Hull, as Speaker, and by Thomas Stocks, as President,
and by George R. Gilmer, as Governor. ( Pamph. Acts of 1830, 283.)

Similar resolutions were passed as to the case of Graves by the Legislature of 1834. These
were signed by Thomas Glascock, Speaker; Jacob Wood, President; and Wilson Lumpkin,
Governor. ( Acts of 1834, 338, 9.)

The signers of the first of these two sets of resolutions, belonged to one of the political parties
into which the people of Georgia were divided; of the last to the other of those parties. The two
sets of resolutions, therefore, are good evidence of what was the unanimous voice of the whole
people of the State on the subject.

*32 Georgia, then, also meant the Constitution to be strictly construed, when she agreed to it;
and meant it to convey no powers but those expressly mentioned in it.

Of the old thirteen States, which made the Constitution, I have now gone through with all
except three, Maryland, Delaware and New Jersey. I have no evidence of the action or
sentiments of these States, in the adoption of the Constitution. But it is to be presumed that they
had the same view of it which the other ten had; and if they did not, it can make no difference to
the argument; for without the help of six, at least, of those ten, these three could not have made
the Constitution-even as between themselves. It had to be ratified by at least nine States, before it
could become operative.

And what is the result? Does not the evidence conclusively establish the three first of the four
propositions, and go far to establish the fourth? I think so.

I am aware that a different doctrine has been laid down by some text writers on the
Constitution, and by the Supreme Court of the U. S. I shall briefly notice the doctrine they lay
down.

Story, in his Commentaries on the Constitution, 1 vol. sec. 433, says, “In the interpretation of
the Constitution, there is no solid objection to implied powers”. Kent and Serjeant belong to the
same school.

And the Supreme Court of the United States, in McCulloch vs. State of Maryland, through Ch.
J. Marshall, say, “Among the enumerated powers, we do not find that of establishing a bank or
creating a corporation. But there is no phrase in the instrument which, like the articles of
confederation, excludes incidental and implied powers, and which requires that everything
granted shall be expressly and minutely described. Even the tenth amendment, which was framed
for the purpose of quieting the excessive jealousies which had been excited, omit the word
„expressly‟, (which was contained in the articles of confederation) and declares only, that the
powers not delegated to the U. S., nor prohibited by it to the States are reserved to the States
respectively, or to the people.”

It is true, the word „expressly‟ is left out of the clause in the amendment to the Constitution.
But it is to be remembered, as we have seen, that the makers of the Constitution- the State
Conventions-in the making of it-before any amendment to it existed-understood it to convey no
powers but expressed powers; and that they were led so to understand it, by the representations
of the friends of it- this very man, Chief Justice Marshall, among them, and that they agreed to
the Constitution in this sense, and this sense only. It is of no consequence therefore, what this
amendment contains or omits in this respect.

I must, however, again quote what Judge Marshall said in the Virginia Convention, when his
object was to make the Constitution palatable, and to have it accepted. He said, “Has the
Government of the U. S. power to make laws on every subject? Does he understand it so”? “Can
they go beyond the delegated powers? If they were to make a law not warranted by any of the
powers enumerated, it would be considered by the Judges as an infringement on the Constitution,
which they are to guard. They would not consider such a law as coming under their jurisdiction.
They would declare it void”. Here is Marshall against Marshall-which is to be taken? The first:
otherwise, the Constitution becomes a stupendous fraud on the States.

*33 But the history of that amendment deserves some notice.- The friends of the Constitution,
after they had procured its adoption, were not so anxious to have it amended as they had been to
have it adopted. Nearly every State wanted amendments; and all that wanted them, wanted them
on this very point, as to delegated and reserved powers. And the Conventions of Massachusetts,
New Hampshire and Virginia instructed their members in Congress to do their best to get an
amendment, putting this point beyond question.

Congress was the body that had power to propose amendments. Let us see what it did on the
subject of this particular one.

The 9th proposition in the words following, was considered by House of R: “The powers not
delegated by the Constitution, nor prohibited by it to the States, are reserved to the States
respectively”. Mr. Tucker moved to insert the word “expressly' before the word delegated. “Mr.
Madison objected to this amendment, because it was impossible to confine a Government to the
exercise of express powers-there must necessarily be admitted powers by implication, unless the
Constitution descended to count every minutia. He remembered the word expressly had been
moved in the Convention of Virginia, by the opponents to the ratification; and after full and fair
discussion, was given up by them, and the system allowed to retain its present form”. This, and
some remarks of Sherman, to the effect that corporate bodies had “All powers incident to a
corporate capacity”, did the business for „expressly‟.

Mr. Carroll proposed to add, “or to the people”. ( Annals of Cong. 1 Vol. 790.) It was done.

Now, as to this statement of Mr. Madison, it is to be observed that the report of the debates,
&c., of the Virginia Convention do not confirm it; but in the strongest negative manner affirm
what is substantially the contrary of it. They show that the Convention was told by the friends of
the Constitution, Madison himself, Nicholas, Randolph, Marshall, that the Constitution would
confer on the General Government only express, „enumerated‟ powers.

The ratification of Virginia shows the Convention to have had the “impression” that “every
power not granted” by the Constitution, “remains” with the people: ““““““that therefore no
right”, &c., “can be cancelled”, &c., “by the Congress”, &c., “Except in those instances in which
power is given by the Constitution, for those purposes.”

Now that “ those instances” mean those specifications, those enumerated cases ““““““in
which power is given”, is too clear to admit of a doubt. It is equally clear, that they were
understood in this sense, by the friends of the Constitution; and that they were actually
expounded in this sense, by those friends, in order to induce the Convention to choose the form
of ratification which contained them, in preference to a form proposed by Patrick Henry. And
that of those friends so expounding them, was Mr. Madison himself. Here is the proof.

*34 Two modes of ratification were proposed to the Convention, one by Wythe and one by
Henry. Wythe's contained a preamble to the words of ratification, in which was the declaration,
that “The powers granted under the proposed Constitution, are the gift of the people; and every
power not granted thereby, remains with them and at their will; no right, therefore, of any
denomination can be cancelled, &c., by the Congress, &c., except in those instances in which
power is given by the Constitution for those purposes”, &c.
 Wythe's mode was adopted; and it was then “Ordered that a committee be appointed to
prepare and report a form of ratification pursuant to that mode.”

This was done, and the committee reported a form of ratification, which contained the very
words aforesaid, contained in Wythe's preamble. (3 Ell. Deb. 587, 593, 653, 654-5-6.)

Now, in the debate on the two proposed modes, Gov. Randolph said, “What is the paper
which he (Henry) offers in the form of a bill of rights? Will that better secure our rights than a
declaration like this? (viz, of Wythe's.) All rights are therein declared to be completely vested in
the people, unless expressly given away. Can there be a more pointed or positive reservation”?
So Randolph says the meaning of this declaration is, that all rights are vested in the people,
unless expressly given away. ( Id. 598.)

After Gov. Randolph, on the same side, in reply to one or two intervening speakers on the
other side, came Mr. Madison. He said “With respect to the proposition of the honorable
gentleman to my left, (Mr. Wythe) gentlemen apprehend that by enumerating three rights, it
implied there were no more.- The observations made by a gentleman lately up, (manifestly
Governor Randolph) correspond precisely with my opinion.” So Mr. Madison endorses Gov.
Randolph as to the meaning of those words. And he adds, “Can the General Government
exercise any power not delegated? If an enumeration be made of our rights, (viz: our reserved
rights) will it not be implied that every thing omitted is given to the General Government”? And,
to carry out the idea, whereas, if we do not make an enumeration of our reserved rights, but do
make one of the delegated rights, it will be implied that every right „omitted‟ from the
enumeration of delegated rights: that is, that every right not enumerated-not expressed, is not
delegated. (3 Ell. Deb. 620.) Of all certain things, none can be more certain than this: that the
friends of the Constitution in the Virginia Convention were most anxious to repel the idea that
the Constitution would confer powers by implication. And power could be conferred on it in but
two ways, by implication or by expression.

It is to be hoped, therefore, that Mr. Madison is misreported in the Congressional Annals.

*35 It is to be remembered, too, that at this time Mr. Madison was not the man that he became
afterwards. He was the man that a year or two before, in the Convention for drafting the
Constitution, used this language: “The States at present are only great corporations, having the
power of making by-laws, and these are effectual only, if they are not contradictory to the
General Confederation. The States OUGHT to be placed under the control of the General
Government-at least as much as they formerly were, under the King and British Parliament”.
And it must be admitted that after the adoption of the Constitution, no better ways remained to
give the General Government this control, than to make a new instrument of the Constitution, by
construction. ( Yate's Min. 1 Ell. Deb. 461.)

But there is a word more to be said on this point.

The Convention of Massachusetts accompanied their ratification with the expression of an

opinion, that certain amendments would remove fears and guard against an undue administration
of the Federal Government; and they, therefore, recommended the adoption of the following
amendment, among others:

“1. That it be explicitly, (not left implicitly, as it is now,) declared that all powers, not
expressly delegated, are reserved to the several States, (not ““or to the people”,) to be by them
exercised”.

And the Convention enjoined it “upon their Representatives in Congress, at all times, until the
alterations and provisions aforesaid have been considered, to exert all their influence, and use all
reasonable and legal methods, to obtain a ratification of the said alterations and provisions”. (1
Ell. Deb. 321, 322, 326.)

It will be remembered, too, that this proposed amendment, number one, was stated to the
Massachusetts Convention, by John Adams, to be, in itself, equal to a Bill of Rights, and that
Fisher Ames and Theodore Sedgewick, were two of the leading friends of the Constitution in that
Convention, and who favored its ratification in that form.

Now, these two gentlemen were also members, of the Congress which proposed the
amendment under consideration. Did they not “exert all their influence, and use all reasonable
and legal methods”, to obtain a ratification of the Massachusetts amendment, as they were
enjoined by the Massachusetts Convention to do, and as they had personally promised to do, by
going for the ratification, in the form in which it stood? Did they not insist upon having the word
“expressly” in? They did not open their mouths on the subject. They did not so much as tell the
House what was the wish Massachusetts. They did not ask for the yeas and nays.

But things had changed; the Constitution had become a thing established; before, when the
promise was made, it was a thing to be established; and to establish it was seen to be a work of
no small difficulty. Help was needed then.

*36 This Congress went further. It added, at the end of the clause, the words, “or to the
people”, “reserved to the States or to the people”. This addition was called for by no word or
deed, of any of the State Conventions. It was put in evidently for future use-to help out a theory
of the Constitution- that which assumes for its first principle that the Constitution of the United
States was made, not by the peoples of the States, as separate peoples, but by the people of all the
States, acting as one people and being one people. That theory, before this little sly addition to
the Constitution was made, had no place inside the Constitution for its feet to stand on. It had to
wait outside, in the preamble.

Instead, then, of proposing amendments of restriction, which the makers of the Constitution
wanted, this Congress proposed amendments of enlargement, which those makers did not want.
And here, perhaps, we see where entered the first pick in the process of “sapping and mining”
the Constitution-a process in which, according to Mr. Jefferson, another department of the
Government was to become proficient.

Now, it is true that the omission of the one word, and the addition of the four, are really small
matters. They do not change the sense. That, as we have seen, was as full without as with any
such amendments, and was so understood to be by the makers of the Constitution, at the time
they made it. But then, as to the motives which actuate men, a small thing may tell, as much as a
great one. Treachery, infinite, may be exhibited by a mere kiss.

I shall have occasion, again, to advert to the doctrine of the Supreme Court, on the rule of
construction of the Constitution. I shall then consider the question, of what authority, over this
Court, is a decision of the Supreme Court of the United States. For the present, I shall claim that
my first, second and third propositions are established by the evidence. The fourth proposition,
viz: “That the words used, if susceptible of more meanings than one, were used in the meaning
which was least favorable to the delegation of power, and most favorable to its retention”, will
receive some further support. This proposition, more especially, involves the rule which is
commonly called the rule of strict construction. That rule, however, is also involved in the other
three propositions.

Did, then, the makers of the Constitution intend that the expressed powers should be
construed strictly? That they did, is manifest from a variety of things additional to what have
been already brought forward.

1. The people of the States loved their State Governments, and distrusted any Central or
General Government. This is a fact as well authenticated as any in history. See Madison, (3 Ell.
Deb. 258.) They would, therefore, take as little power as possible from these Governments, to
give to a Central one. And to diminish the gift as much as possible, it has to be construed strictly.

*37 2. The people of the States who made the Constitution, considered themselves as the
sovereign, and the Government as the subject. They were the principal- it the agent. That this is
also true, none will dispute.

Now, in a question between principal and agent, the instrument of agency is, as a matter of
course, to be construed strictly against the agent. Such construction cannot hurt him. Any other
might hurt his principal. The Constitution is but this instrument. Cannot the makers of this, as of
all other constitutions, revoke it, even without leave of the agent?

Even the King's grants are to be construed strictly in favor of the King, and against the
grantee, he being considered in the systems of Laws which tolerate Kings the Sovereign, and the
people the subject. Shall not, therefore, the grant of the people, the real sovereign, to the
magistrates, whom they appoint, for their own, and not for those magistrate's purposes, be also
construed strictly in their favor, and against the magisistrates?

And if a deed is without consideration, it conveys as little as construction can make it convey.
There is no consideration moving from the Government to the States, for the Constitution.

The people, then, who made the Constitution, considering themselves and the Government
they made, to occupy this relation towards each other, are to be presumed to have intended the
usual incidents of such a relation. And a strict construction of the instrument of agency, is one of
those incidents.
 3. Strict construction of expressed powers results from the fact that no powers but expressed
powers are given. Why were no powers but expressed powers given-because the people did not
want to part with power without knowing it- without seeing it with their eyes. Will you, then, in
construing their words, make them say they mean to give more than the least their words require
to be given. It is to be presumed they did not see the larger meaning of which their words are
susceptible, otherwise they would have used different words.

The makers of the Constitution enumerated all the powers they gave, even to the power to
carry powers into effect.- They did not intend that there should be any opening for implied
powers. They did not leave open the door for the ordinary implication that when the end is given
expressly, the means are given impliedly. They made a list of powers and said to the
Government, you may have these. They then said here is another power which you shall have,
viz: a power to pass any law which may be necessary and proper, to carry into effect any of the
first named powers. Now, as to the latter power-the power over means, it is expressly to be taken
strictly-it is to be confined to what is necessary and proper. Is it to be supposed that the men who
intended such a construction as to means-the less power should have a different sort of one for
ends-the greater power.

4. Why did they make provision for amending the Constitution? Mainly to furnish an easy
way to give the Government more power if experience should prove it to need more. It is easy to
give power-hard to get it back-knowing this, is it not to be supposed that the makers of the
Constitution intended their grants of power to be taken strictly?

*38 5. But if any thing could prove that the rule of strict construction was the rule intended by
the makers of the Constitution, it would be the amendment of the Constitution as to construction.
That amendment is, that “The Judicial power shall not be construed to extend to any suit, as
against one of the United States, by citizens of another State, or by citizens or subjects of any
foreign State”?

Now here is a construction which the makers of the instrument themselves put upon their own
work in respect to one most important power. The words to be construed were these: “The
Judicial power shall extend” “to controversies” ““““““between a State and citizens of another
State” “and between a State or the citizens thereof, and foreign States, citizens or subjects”. The
Supreme Court of the United States, in the case of Chisholm, Executor vs. Georgia, had held that
the former of these grants authorized a State to be sued as defendant. That Court maintained that
the words themselves plainly said that the State might be sued-as plainly as they said “a citizen”
might be. But two-thirds of both branches of Congress, and the entire people of all the States said
no. They said that even such words should not be so construed. They said that the words were
susceptible of a narrower meaning, one in favor of the States-a meaning which would let States
sue, but not be sued; and that, therefore, the words should be construed to have that meaning.
This was all said and done soon after the making of the Constitution-from 1793 to 1798- when
the whole idea of the Constitution was fresh in the minds of them -its makers. This was a
remedial power too. Yet as against the States even, it must give up its prerogative, and be
construed strictly.
 Now if in such a case the makers of the Constitution, trampling the Supreme Court under their
feet in favor of the States, say the strict rule shall prevail, in what possible case could they say it
should not prevail? Was it to be presumed that after such a rebuke from the makers of the
Constitution, the Supreme Court or any branch of the Government would ever give occasion for
another, by committing a similar offence against construction. Certainly not. Hence the
amendment is not made larger than the mischief. But it shows, unmistakably, the idea of the
makers of the Constitution, as to the rule of its construction. It shows they intended it to be
construed with the utmost strictness possible, in favor of the States.

6. But the makers of the Constitution were deceived. Congress and the Supreme Court,
notwithstanding this rebuke, went on in their old course of construction. They found a warrant in
the Constitution for Jay's treaty; for the alien act; for the sedition act. So the makers of the
Constitution thought they would try another remedy than amendment of that instrument. They
concluded to smite the construers. This they did. Wherever they could reach an offender, they
hurled him against the ground, and put their foot on him, and kept him there till he died or
repented. The Supreme Court offenders were beyond their reach. They had in their offices a
tenure for life; and as all the offenders in this case were such as not to be affected by any thing
but punishment, those who could not be punished contemned their courses. But the other
departments of the Government underwent a change. They construed the Constitution according
to the Virginia and Kentucky Resolutions of 1798 and 1799. These prescribed the strict rule.
This was the rule of Jefferson and the Republican party. This was the rule that put down the
Federal party which had had possession of the Government from its origin under the
Constitution. The offence of that party was that, in the opinion of the makers of the Constitution,
the people of the States had put a false construction on that instrument. Hence it was hurled from
power-from respectability. Its name became a word of reproach. This great revolution in
government was made for the sake of a rule of construing the Constitution-this same strict rule.
And from the year 1800, 1801, when the revolution took place, no party has professed any other
rule, although it must be admitted that the practice of parties has not, in this respect, always
corresponded with their professions. The voice of the makers of the Constitution then -the people
of the States-by this amendment of the Constitution, and by this condemnation of the early
administrators of it, proclaims the strict rule.

*39 7. And the practice of all of the States, from the date of the Constitution, ' til this day,
proves the States to believe that rule to be the true one. All have passed Laws upon the idea that
they retained all powers which a strict construction of the Constitution would not give to the
General Government. The Passenger Laws of New York and Massachusetts illustrate this. These
two great States thought their respective laws on this subject to be warranted by the Constitution.
This was the opinion of every branch of the Governments of each of those States. This was the
opinion of four Judges of the Supreme Court of the United States. And doubtless this was the
opinion of the Congress and the President of the United States: for neither of those departments
made any complaint of those Laws; and they were Laws which infringed the rights of those
departments, if they infringed any rights, for they touched commerce, if they touched any thing
committed to any department; and that is committed to Congress. And is it not certain that this
was the opinion of all the other States and State Governments? But against all this weight of
opinion in favor of the constitutionality of these laws, we had Mr. Justice McLean, Mr. Justice
Wayne, Mr. Justice Catron, Mr. Justice Grier, and Mr. Justice McKinley.
 But the question for the present is, not what the Supreme Court consider the rule of
construction to be, or whether what they consider it to be is to be conclusive upon the rest of the
world, but it is, what was the sense in which the makers of the Constitution understood it, at the
time when they made it. And I now insist that I have established all of my four propositions on
that subject, viz:

[6.] 1. The makers of the Constitution understood that it delegated to the General
Government, or any department thereof, no power by implication, but only delegated such
powers as it expressly enumerated.

2. That it delegated no exclusive power, unless the delegation was said to be exclusive.

3. That it laid no prohibition upon the States, except such as it specified.

4. That the words used in it, if susceptible of more meanings than one, were used in the
meaning which was least favorable to the delegation of power, and most favorable to its
retention.

I have assumed that the Constitution is to be construed in the sense in which its makers
understood it when they made it. Who will dispute this?

In what sense did those makers understand it? I have endeavored to show. Have I succeeded?
What is there against my conclusions? Nothing, except some decisions of the Supreme Court of
the United States. Are not these decisions, per se, evidence of what was the sense which the
makers of the Constitution had, of the meaning of that instrument? I say by no means. What that
sense was, is a question of fact, which has to be solved by going into the domain of facts-the
domain in which I have been laboring so long. It is a question which evidence, not ipse dixit,
must determine.

*40 And I say, further, that the rule of construction of the Supreme Court, as it is to be
deduced from the decisions of that Court, is one which needs only to be read in its consequences,
to satisfy everybody that it could not have been the rule of the makers of the instrument. Is this
so? Let us take one of its most celebrated decisions-the decision in McCulloch vs. Maryland, and
see. (4 Wheat.)

Maryland made a Law, imposing a tax on “All banks or branches thereof, in the State of
Maryland, not chartered by the Legislature”. The branch of the United States Bank, at Baltimore,
refused to pay this tax-the Cashier of it was sued for the tax by the State, and the suit was finally
carried up to the Supreme Court of the United States.

That Court decided, first, that Congress had power to make a bank. Secondly, that the States
had not power to tax the branches of such a bank, established within their territory. In order to
arrive at these conclusions, the Court had to have very large premises. Accordingly, to support
the first conclusion, it pronounced the rule of construing the clause of the Constitution which
gives Congress power to pass all Laws which may be necessary and proper, for carrying into
execution the enumerated powers, to be this: “The result of the most careful and attentive
consideration bestowed upon this clause is, that if it does not enlarge, it cannot be construed to
restrain, the powers of Congress, or to impair the right of the Legislature to exercise its best
judgment in the selection of measures to carry into execution the Constitutional powers of the
Government”.

This means that among measures for executing, “the Constitutional powers of Government”,
Congress may, at discretion, choose one as well as another. And this is giving Congress power to
make a dictator.

The appointment of a dictator would be a measure by which all the powers of the Government
could be executed most promptly and most efficiently. It is by far the simplest of all modes.

The argument will stand thus: Congress has power to select any measure for executing the
Constitutional powers of the Government.

The appointment of a dictator would be a prompt, efficient and simple measure to execute any
of its powers.

Therefore, Congress has power to appoint a dictator.

The premises are amply large enough to hold this conclusion.

To support the second conclusion, the Court lays down this proposition: “We find, then, on
just theory, a total failure of this original right to tax the means employed by the Government of
the Union, for the execution of its powers”. And this-“That the power to tax involves the power
to destroy”. And these-“If we apply the principle for which the State of Maryland contends, to
the Constitution, generally, we shall find it capable of changing, totally, the character of that
instrument. We shall find it capable of arresting all the measures of the Government, and of
prostrating it at the foot of the States. If the States may tax one instrument employed by the
Government, in the execution of its powers, they may tax any and every other. They may tax the
mail; they may tax the mint; they may tax all the means employed by the Government, to an
excess which would defeat all the ends of Government-this was not intended by the American
people”.

*41 Now the principle at the bottom of all these propositions is this: The States have no
power, by the exercise of which, they can defeat all the ends of Government-the General
Government, or any of those ends.

But the States, by the exercise of the taxing power, can take from their inhabitants every cent
the inhabitants can spare, and live.

According to the principle of this decision, therefore, the States have no power to lay any tax
on their inhabitants; and if they have no power to tax, it follows that they have no power to
enable them to keep up their State Governments; and without State Governments, they have no
power to keep themselves alive, as States.
 The principle comes to this: that the States, in making the Constitution, intended to give up
the power of self-preservation.

On the one hand, then, Congress may convert the General Government into a dictator; on the
other, the States have not retained the power of self-preservation. This is McCulloch vs.
Maryland. It is to this that the Supreme Court rule leads. Did the makers of the Constitution
intend any such rule as this?

But this case is evidence in another point of view. It shows that the Supreme Court of the
United States, in construing the Constitution, not only do not seek for the meaning of the makers
of it, but that when they have that meaning, unmistakably, without seeking for it, they disregard
it. They decide, here, that Congress may charter a corporation. Now the power “To grant charters
of incorporation, where the interest of the United States might require, and the Legislative
provisions of the several States may be incompetent”, was asked to be given to Congress, in the
Convention which framed the Constitution. There being much objection to the breadth of this
power, as asked for, and some indications of favor to a power, merely to incorporate canals, the
motion was so modified as to admit a distinct question, specifying and limited to the case of
canals. It was rejected by eight States to three; and “The other part”, says Mr. Madison, “fell, of
course, as including the power rejected”. The Convention, then, refused the power to incorporate
so much as a canal; and, in the face of this refusal, the Supreme Court of the United States say,
they gave power to incorporate a bank, with a capital of $35,000,000, and authority to establish
branches in every State. What matters it to such a Court, what was the wish of the makers of the
Constitution? (5 Ell. Deb. 543, ′4.)

The disregard of this Court to the known will of the makers of the Constitution, as to the rule
of construction, is equally exhibited in a number of other cases; especially in the cases of Cohen
vs. Virginia and Worcester & Butler vs. Georgia, in which it held that a State might be sued,
notwithstanding the clear manifestation of the will of the makers of the Constitution, in the
amendment of it, to which I have heretofore referred, that the Constitution was not to be so
construed as to make a State sueable.

*42 But are not the decisions of the Supreme Court of the United States to govern this Court,
as to the rule of construing the Constitution? They are not, any more than the decisions of that
Court are to be governed by the decisions of this.

The Supreme Court of the United States has no jurisdiction over this Court, or over any
department of the Government of Georgia. This Court is not a United States Court; and
therefore, neither the Government of the United States, nor any department of it, can give this
Court an order. It follows, if this be true, that decisions of that Court, are not precedents for this
Court.

Is this true? Let us see. And first, let us try the questions by the principles of the party of
liberal construction, as promulged by their most distinguished leaders.
 That party held, at the time the Constitution was in the process of adoption, as well as
afterwards, that the State Governments were “supreme” and ““sovereign,” as to some things, and
that the General Government was “supreme” and “sovereign”, as to some. Alexander Hamilton,
as we have seen, when insisting on the adoption of the Constitution in the New York
Convention, said, “That two supremes cannot act together, is false. They are inconsistent, only
when they are aimed at each other, or at one indivisible object. The Laws of the United States are
supreme, as to all their proper Constitutional objects; the Laws of the States are supreme in the
same way. The meaning of the maxim-there cannot be two supremes, is simply this: two powers
cannot be supreme over each other”. (2 Ell. Deb. 356.) Again, a day or two after, he said, “I
maintain that the word supreme, imports no more than this: that the Constitution and Laws made
in pursuance thereof, cannot be controlled or defeated by any other Law. The Acts of the United
States, therefore, will be absolutely obligatory, as to all the proper objects and powers of the
General Government; but the Laws of Congress are restricted to a certain sphere; and when they
depart from this sphere, they are no longer supreme or binding. In the same manner, the States
have certain independent powers, in which their Laws are supreme. For example, in making and
executing Laws concerning the punishment of certain crimes, such as murder, theft, &c. the
States cannot be controlled. With respect to certain other objects, the powers of the two
Governments are CONCURRENT, and yet supreme. I instanced, yesterday, a tax on a specific
article. Both might lay the tax-both might collect it, without clashing or interference. If the
individual should be unable to pay both, the first Seizure would hold the property. Here, the
Laws are not in the way of each other-they are independent and supreme”.

The idea meant to be conveyed here is clearly this: that the General Government has a sphere
in which it is supreme, and the State Governments a sphere in which they are supreme; that these
spheres intersect each other, and that the space included between the arcs of intersection, is
common to both-is a space in which both are equally supreme, and in which there is no rule but
one- Qui prior est in tempore potior est in jure.

*43 The same principles have been expressed by Marshall, Chief Justice, since the adoption
of the Constitution. In McCulloch vs. Maryland, he says, “In America, the powers of sovereignty
are divided between the Government of the Union, and those of the States. They are each
sovereign, with respect to the objects committed to it, and neither sovereign, with respect to the
objects committed to the other”. (4 Wheat. 410.)

Now, if the General Government, by its Judiciary, can come out of its sphere, into the sphere
of a State Government, and ravish a case thence out of the hands of the State Judiciary, the two
Governments are not equally supreme within their respective spheres. But they are, by admission
of Hamilton and Marshall, equally supreme in their respective spheres; therefore, the former
Government cannot do this, with respect to the latter. As well might it be said that England could
order a case out of France, from a French into an English Court; or that a State Court could order
a case out of the Supreme Court of the United States into it. None but a superior can give an
order; none but an inferior is bound to obey one.

The question, when tried by the rule of strict construction, does not admit of a doubt. That
rule is, that the General Government has no powers, except such as have been expressly
delegated to it; and that the delegations of express power are to be strictly construed.
 Now, jurisdiction over State Courts is not expressly given to the General Government, or any
department of it.

Therefore, according to this rule, such jurisdiction is not given at all.

Not only is this sort of jurisdiction not expressly given; but there is another sort expressly
given, which necessarily excludes the idea that this was intended to be given. That is done in the
third article for organizing the judiciary. This will appear by simply inserting in that article the
words which are necessarily implied. Let us do this. The section will then read as follows, the
supplied words being in brackets:

The (whole) judicial power (except as herein excepted) of the United States, shall be vested in
one Supreme Court, and in such Inferior Courts as the Congress may, from time to time, ordain
and establish. The Judges, both of the Supreme and Inferior Courts, (who are to exercise this
whole judicial power, except as herein excepted) shall hold their offices during good behavior;
and shall, at stated times, receive for their services a compensation which shall not be diminished
during their continuance in office.

The (whole) judicial power (except as before excepted) (thus vested in one Supreme Court
and in such Inferior Courts as the Congress may, from time to time establish, to be exercised by
Judges who are to hold their offices during good behavior) shall extend to all cases in Law and
Equity, arising under this Constitution, the Laws of the United States, and treaties made, or
which shall be made under their authority, to all cases affecting Ambassadors, other public
Ministers and Consuls; to all cases of admiralty and maritime jurisdiction; to controversies to
which the United States shall be a party; to controversies between two or more States; between a
State and citizens of another State; between citizens of different States; between citizens of the
same State, claiming lands under grants of different States; and between a State or the citizens
thereof, and foreign States, citizens or subjects.

*44 In all (those) cases affecting ambassadors, other public ministers and consuls, and those
in which a State shall be a party, (in respect to which the whole judicial power of the U. S. is thus
vested in one Supreme Court, and in such Inferior Courts as the Congress may, from time to time
ordain and establish with Judges for life,) the Supreme Court shall have original jurisdiction. In
all the other cases before mentioned, (in respect to which the whole judicial power of the U. S. is
thus vested in one Supreme Court, and in such Inferior Courts as the Congress may, from time to
time ordain and establish, with Judges for life,) the Supreme Court shall have appellate
jurisdiction, ( as to such Inferior Courts) both as to Law and fact, with such exceptions, and
under such regulations, as the Congress shall make, (and such Inferior Courts shall, as to these
other cases, have original jurisdiction as to such Supreme Court.)

The mere supply of these necessarily understood words, makes it as clear as day, that the
appellate jurisdiction delegated to the Supreme Court, applies only to the Inferior Courts of the
United States, ordained and established by Congress, with Judges for life, and not to State
Courts, which are not United States Courts, which are not ordained and established by Congress,
and which are presided over by Judges who do not hold their offices for life.
 Now in this part of the article is contained the whole judicial power delegated to the General
Government, except as to impeachments; and as to the powers of the two houses to judge of the
elections, &c., of their members.

What, then, is thus expressly laid down in the Constitution, necessarily excludes the idea that
the General Government, or any department of it, was to have jurisdiction over the Courts of a
State.

But again: if this sort of appellate jurisdiction exists, then it exists equally with respect to a
State Court of one grade, as to a State Court of another. It exists as to all Courts „inferior‟ to the
Supreme Court; and if the highest State Courts are inferior to that Court, still more so are the less
high. If this sort of jurisdiction exists, then there may, as far as this State is concerned, be an
appeal to the Supreme Court of the U. S., from the Supreme Court of the State, from the Inferior
Courts, from the Ordinary, from the Justice's Courts, from Corporation Courts, and perhaps from
Court's Martial. This appellate jurisdiction, then, if it exists, extends to every State Court alike.

And the same sort of construction which makes it to exist at all, as to any State Court, will
much more easily make it extend to every case that can arise in any such Court. The cases to
which it is to extend, as mentioned by the Constitution, are “All cases in Law and Equity, arising
under this Constitution, the Laws of the United States, and treaties made, or which shall be made
under their authority” and others. But these are enough. What are cases “arising under the
Constitution”? Under the liberal rule of construction, it is easy to say that the Constitution is an
instrument which gives one part of the powers of Government to the General Government; and
gives the other part to the States-that all power is given by the Constitution. Now if that be said,
no case of any kind can arise in a State which will not draw in question some power of the State,
or some power of the General Government; but if a case draws in question a power of either, it is
a case arising under the Constitution; because, on on this theory, the powers of both are derived
from the Constitution.

*45 This appellate jurisdiction, if it exists then, extends to all State Courts of all grades, and
to all cases in those Courts.- The effect of such extension, would be to make the States exist, at
the mercy of the General Government. If they laid a tax, the taxed person might refuse to pay it;
and if sued for it, appeal to the Supreme Court. That Court could pronounce the tax law
unconstitutional; as flowing from a power which, if it existed in the States, might enable the
States to destroy the General Government, by taking to themselves all that could be paid for
taxes, and leaving nothing for the General Government to take. The Court would so pronounce,
if it should follow the principle on which McCulloch vs. Maryland stands. This is but an instance
out of a thousand.

Now the power to annul State Laws was not given to the General Government. The Federal
Convention refused repeatedly to give this power to any department of the General Government.

In Mr. Randolph's propositions, which were the basis of the Constitution, the effort to give
this power first appears. His 6th resolution had these words, “““ Resolved, that each branch (of
the Legislature) ought to possess the right to negative all laws passed by the several States,
contravening, in the opinion of the National Legislature, the articles of union; or any treaty
subsisting under the authority of the United States”.

His 8th, these: “That the Executive, and a convenient number of the National Judiciary, ought
to compose a council of revision, with authority to examine every act of the National Legislature,
before it shall operate; and every act of a particular Legislature, before a negative thereon shall
be final; and that the dissent of the said council shall amount to a rejection, unless the Act of the
National Legislature be again passed, or that of a particular Legislature be again negatived by -
of the members of each branch”. (5 Ell. Deb. 127-8.)

Here the Judiciary was to take part in the veto of State Laws. It might, with the President,
affirm a veto applied by either branch of Congress to a State Law. But even this limited right was
not allowed to the Judiciary. It was struck from the resolution, and at once. ( Ib. 166.) And
although asked for repeatedly afterwards, by the enemies of the States, in the Convention, it was
pertinaciously refused. The Judiciary was refused the power to participate in any revision or
negative of any Laws, whether State or Federal. (See Ib. 344, 428.)

So the power proposed to be given to the Federal Legislature, “To negative all laws passed by
the several States, contravening in the opinion of the National Legislature, the articles of Union”,
&c., was refused by the vote of seven States to three. ( Ib. 321, 322.) Even Gouverneur Morris
“opposed this power as likely to be terrible to the States, and not necessary, if sufficient power
should be given to the General Government”. ( Ib.)

*46 Indeed, members of the Convention, Mercer, and Dickinson, and Sherman, expressed
decided opinions against the propriety of the doctrine, that “The Judges, as expositors of the Con
stitution, should have authority to declare a Law void”; and these opinions were feebly
combatted. ( Ib. 429.)

It appears, then, that the Convention which drafted the Constitution, although repeatedly
requested to give the veto of State Laws to the General Government, steadily refused it -refused
to give a mere modicum of it to the Judiciary.- And if it refused to give the power directly, it is
not to be presumed that it gave it indirectly, by a forced implication in the said third article-gave
it, indeed, without knowing what it was doing.

Now it must be manifest to any one, on a little reflection, that if the United States' Courts
have power over the State Courts, they have power over the State Laws-power over the operation
of those Laws, within the territory of the States- power to nullify every Act of the States. Was this
the intention of the makers of the Constitution-these very States?

[7.] The conclusion is, that the Supreme Court of Georgia is co-equal and co-ordinate with the
Supreme Court of the United States, and not inferior and subordinate to that Court. That as to the
reserved powers, the State Court is supreme; that as to the delegated powers, the U. S. Court is
supreme; that as to powers, both delegated and reserved- concurrent powers-both Courts, in the
language of Hamilton, are “equally supreme”; and that as a consequence, the Supreme Court of
the United States has no jurisdiction over the Supreme Court of Georgia; and cannot, therefore,
give it an order, or make for it a precedent.
 This conclusion is in accordance with the uniform action of the Government of Georgia, in all
of its departments. In the cases of the missionaries, Worcester and Butler; of Tassells, and of
Graves, her Courts treated, with contempt, the claim of jurisdiction over them, by the Supreme
Court of the United States. The missionaries served their times out in the penitentiary,
notwithstanding the mandate of the Supreme Court of the United States, that they should be set
at liberty. In this course, on the part of the Judiciary, the Legislature and the Executive
concurred-indeed, co-operated. And the people approved the conduct of the whole.

Now it is true, these were criminal cases; but that can make no difference. If the United States'
Court has no jurisdiction over the State Court, with respect to a criminal case, involving Statutes
of the United States, and treaties with the Indians, as these cases did, it can have none over the
State Court, with respect to a civil case. A civil case can do no more towards giving jurisdiction
than involve some Statute, or treaty, or the Constitution.

I am aware that Congress have passed two Acts contravening this view. The Act of 1789, to
establish the Judicial Courts of the United States, and the Act of 1833, further to provide for the
collection of duties on imports”. ( Story's Laws, 1 vol. 53, 4 do. 2340.)

*47 The first, in its 25th section, declares, among other things, “That a final judgment or
decree, in any suit in the highest Court of Law or Equity, of a State, in which a decision in the
suit could be had, where is drawn in question the validity of a treaty or Statute of, or an authority
exercised under the United States, and the decision is against their validity”, &c. enumerating
other cases, “may be re-examined and reversed or affirmed in the Supreme Court of the United
States, upon a Writ of Error”, &c.

The Act of 1833 declares that in any case, where suit or prosecution shall be commenced in a
Court of any State, against any officer of the United States or other person, for or on account of
any Act done under the Revenue Laws of the United States, &c. “it shall be lawful for the
defendant, at any time before trial”, upon petition, to transfer his case into the Circuit Court of
the United States; “And it shall be the duty of the Clerk of the Circuit Court, to issue a Writ of
Certiorari to the State Court, requiring said State Court to send to said Circuit, the record and
proceedings in the cause”.

The men that made this Act, did not have the effrontery to make it to last longer than the “end
of the next Session of Congress”.

This Act makes the Circuit Courts-the inferior Courts of the United States, superior to the
highest State Courts. And, in truth, there is as much warrant in the Constitution, for making these
inferior Courts so, as for making the Supreme Court so.

If the Constitution does not give the General Government, or any department of it,
jurisdiction over the Judiciary of the States, it does not give Congress the power to pass such
Laws as these; and these Laws are therefore void.

My opinion is, that the Constitution does not, and I have given my reasons for the opinion.
 But say that I am wrong in this opinion; still, I deny that the decisions of the Supreme Court
referred to, are precedents to govern this Court.

Those decisions were mere partisan decisions-to be overruled in the Court which made them,
as soon as a majority of the members of the Court should be of different politics from the politics
of the members who made the decisions. The doctrine that a decision of the Supreme Court of
the United States is to dictate a man's politics to him, is a doctrine avowed by few in this country.
Such a doctrine would be an easy means of perpetuating a dynasty of principles, however false
or wicked. All that would have to be done, would be to start with men of those principles. Their
decisions would do the rest. Whatever they said the Constitution meant, the people would have
to vote it to mean. Parties, on Constitutional questions, could not arise.

But are these mere political decisions, and made by partisan Judges?

*48 There are now, and have been before now, in these United States, but two parties, with a
deeply marked line of separation between them. The party which stands on the side of the
delegated powers, and that which stands on the side of the reserved powers-the National party
and the State's Rights party.

Now, the effect of the decisions of the Supreme Court, to which I have referred, is to put up
the National party and to put down the State's Rights party. The decisions are, therefore,
political. Indeed, they discuss the same topics and come to the same results, in all respects, as do
the speakers in Congress, the stump orators out of Congress, and the newspaper writers in and
out of it-of the same politics as the majority of the Court making the decisions.

Are the Judges partisans? What are their antecedents? The leading Judges on the bench of the
Supreme Court, before the era of Judge Marshall, were Jay, Wilson and Ellsworth? Each of these
had been an active and an ardent politician before he went upon the bench. He had acquired his
bend in politics. On the bench, he only uttered the same Constitutional doctrines which he had
uttered off.

In the era of Judge Marshall, which lasted through thirty-four years, he was the Chief of the
Court, and Justice Story was a good second. Was Judge Marshall a politician? Let this summary
of his life, taken from his biography, in the National Portrait Gallery, answer:

Born in 1755, he was a Lieutenant in 1775; a first Lieutenant in 1776; a Captain in 1777,
1779 and 1780. He read Law in 1780. After Cornwallis's surrender, the Courts being again
opened, he commenced practice. In 1782, he was elected to the Legislature of Virginia; in the
same year, was made a member of the Executive Council. In 1784, he resigned his seat in the
Council. Immediately afterwards, he was again elected to the Legislature. In 1787, he was
elected from Henrico. In 1788, he was a member of the Virginia Convention for ratifying the
Constitution. In the same year, he was elected to the Legislature. “With considerable reluctance,
he yielded to the public wishes, being principally influenced, in his acceptance of the station, by
the increasing hostility manifested in the State, against the National Government, and his own
anxious desire to give the latter his decided and public support”. He continued a member for
Richmond during 1789, 1790 and 1791. Then he retired from politics. He was again drawn forth
by the French question. Here, “the decided taken by Mr. Marshall, could not long remain
unnoticed. He was attacked with great asperity, in the newspapers and pamphlets of the day, and
designated, by way of significant reproach, as the co-adjutor and friend of Alexander Hamilton”.
In 1795, he was elected to the Legislature, in which body he signalized himself by the defence of
Jay's treaty, the great political question of the day. In consequence, he was offered, by the
President, the place of Attorney General; solicited to go Minister to France, but declined both
offers. Within a year, he was offered this place of Minister, by the next President, Adams. This
time he accepted, went abroad and returned in 1798. The next year, after an “ardent contest”, he
was elected to Congress. He took his seat in December, 1799; distinguished himself in the “ever
memorable” Congress of 1799, 1800, and in May, 1800, was made Secretary of War, and soon
afterwards, Secretary of State. In 1799, while a candidate for Congress, he was offered a place on
the bench of the Supreme Court of the United States; but this he then refused, preferring, no
doubt, the more dazzling honors of the mere politician. A year afterwards, he thought better of
the Judgship. It was offered him again, and on the 31st of January, 1801, he took it-became Chief
Justice. By this time, it was seen that his party was struck with death, and that, therefore, further
political offices were hopeless. Whilst upon the bench, he lost no occasion to inculcate his
politics. Hence, the number of his elaborate obiter dicta discourses. As in Marbury vs. Madison,
where, although admitting his Court had no jurisdiction in the case, he argued at length, to show
what was the Law of it, and what the Court would do, if it had jurisdiction, namely: issue a
mandamus to a co-ordinate department of the Government, the Secretary of State, requiring that
department to commission to office certain of his party friends, who had been appointed to office
at midnight of the night when the appointing power itself, John Adams, went out of office. As in
Cohens against The State of Virginia, a case in which his Court decides that it has no jurisdiction
upon the merits; and yet, in a motion, not on the merits, he lays down the doctrine that a State
may be sued, and sued by one of its own citizens, in the Supreme Court of the United States,
notwithstanding he, himself, had told the Convention of that very Virginia, when persuading it to
adopt the Constitution, that a State could not be sued, and was not intended to be sued, by virtue
of the Judiciary article of the Constitution.

*49 His language to the Convention is most unequivocal. He said, “ I hope that no gentlemen
will think that a State will be called at the bar of the Federal Court. It is not rational to suppose
that the Sovereign power should be dragged before a Court. The intent is, to enable States to
recover claims of individuals residing in other States. I contend this construction is warranted by
the words. But, say they, there will be partiality in it, if a State cannot be defendant; if an
individual cannot proceed to obtain judgment against a State, though he may be sued by a State.
It is necessary to be so, and cannot be avoided”. It is charity to set down these opposite
representations of the meaning of the Constitution, to the inconsistencies of the mere politician.

It was not only on the bench that he taught politics. He entered the fields of history and
biography for the same purpose. For what is his Life of Washington and History of the Colonies,
but a labored defence of his party, and an effort to raise its desperate fortunes, by forcing the
name of Washington on the list of its patrons. No; it was not the death of Washington, but the
death of the Federal Party, that set that work on foot. This is but thinly disguised, in the preface
of the work. He says, “Deep impressions were then made, respecting the subjects themselves,
and the persons by whom the various important propositions, then discussed, were supported or
opposed, which are not yet entirely effaced. Justice to the patriot statesmen, who then devoted
their time and talent to the public service, requires that the reasons on which they acted should be
known”. Marshall, then, was a partisan, if there was ever one. Whilst thus a partisan, holding all
the opinions of his party, he is, by a party-President, in the last hour of the party, when its death-
warrant has already been signed, to save him from the general doom, and as the only reward left
for party services, Presidencies being out of the question, offered a Judgship. This time he
accepts it, although he had refused it a year before, when it had not become apparent that the last
hour of the party was at hand, and when, therefore, higher offices might not be looked for, from
it, than that of Judge. What was the course for any partisan to pursue, under such circumstances?
That which he pursued. He took sanctuary, for life, in the Supreme Court. But there he was the
same man that he had been before he got there. The only effect was, to make him more bold in
the avowal of his old principles. He no longer had to answer for them at the ballot-box. He and
his Court, with respect to the Constitution, took one road-the other departments of the
Government, and the vast majority of the American people, took another. There they have been
respectively travelling, the greater part of the time since. The opinions of neither have had the
least influence upon the action of the other. As to Judge Story, he is understood to have
distinguished himself, somewhat, as a Republican partisan, before the war of 1812, in
Massachusetts, where Republicans were then rather scarce. Being a young lawyer of some
promise, and about the only lawyer of that party, there, of much note, he was selected, by Mr.
Madison, for the bench of the Supreme Court of the United States. But once on the bench, he
forsook his party and became the humble interpreter of Marshall-the Dumont to Bentham. He
made it his business to illustrate and to embody the political doctrines of his chief. And this he
did, in what he styles his “Commentaries on the Constitution”. This is a work of as rank partisan
character, on one side, as the Virginia and Kentucky Resolutions, and Mr. Madison's Report of
1798 and 1799, are on the other. Indeed, these Commentaries, and most, if not all of Marshall's
Constitutional decisions, are only so much talk at those resolutions and that report, although the
resolutions and report are seldom mentioned.

*50 Now, partisan decisions may do to bind the political party, which the makers of them
happen to belong to. They certainly bind no other party. And this has been the uniform opinion
and practice of all parties in this country. The Supreme Court said a bank is Constitutional; yet,
bank charters have been vetoed by three several Presidents: Madison-Jackson-Tyler.

So, when a person has been put on the bench of the Supreme Court, who has different politics
from those which justified any particular decision, he goes according to his own politics, and not
according to the decision. He dissents, if need be, as was done in the Passenger Cases. He
decides Constitutional questions as he understands them.

And partisan decisions-and all decisions on Constitutional questions, must be more or less
partisan- ought not to bind as precedents, because they are not made by the tribunal which, in the
last resort, is supreme. This tribunal is the people of the States-the authors of the Constitution.

[8.] The general conclusion is, that what was before laid down as to the sense in which the
makers of the Constitution understood the Constitution, when they made it, is true, any thing in
any decision of the Supreme Court of the United States to the contrary, notwithstanding. It
remains only, therefore, to make an application of what was thus laid down to the matters in
hand, viz: to the case of Brown vs. Maryland, to see whether it overrules that case, and to the
case of Padelford Fay & Co. before this Court, to see how it requires that case to be decided.

But what was laid down? Let us repeat it.

The makers of the Constitution, at the time when they made it, understood it in this sense:

1. That it delegated to the General Government, or any department thereof, no power by

implication, but only delegated such powers as it expressly enumerated.

2. That it delegated no exclusive power, unless the delegation was said to be exclusive.

3. That it laid no prohibition on the States, except such as it specified.

4. That the words used in it, if susceptible of more meanings than one, were used in the
meaning which was least favorable to the delegation of power and most favorable to its retention.

These propositions convey the sense in which the makers of the Constitution understood it, at
the time when they made it. The sense of the makers is to govern. These propositions then
become the rules of construing the Constitution.

[9.] Tried by these rules, the decision in Brown vs. Maryland will be easily found to be
unconstitutional. But the length to which this opinion has already been drawn out, forbids me to
make the application of the rules to that case. It is sufficient that I confine myself to the
application of them to the case for the decision of this Court. That I shall now endeavor to do.

*51 [10.] According to these rules, therefore, does the Ordinance of Savannah interfere with
the clause of the Constitution, which says that Congress shall have “power to regulate commerce
with foreign nations and among the several States”? The answer is that it does not.

1. The power to regulate commerce, given to Congress, is not said to be exclusive. Therefore
it is not exclusive. The States and Congress have it concurrently.

2. So a tax on “sales” is not a tax on commerce-not a regulation of commerce. Sales are not
commerce. Commerce is traffic-is an act-is the act of buying and selling-and not the result of the
act-not the thing bought or the thing that stands in the place of the thing sold-the price-the
“sales”.

It is true, the liberal rule of construction makes commerce mean “intercourse” and mean
“navigation”-but the word has no such meaning by dictionaries; by the Common Law; or by
common usage. And if this rule allows you to step beyond the meaning of the word thus defined,
to “intercourse” and to “navigation” it may perhaps equally allow you to step to “sales”. The
strict rule, however, allows nothing of the kind. It requires words susceptible of more meanings
than one, to be taken in that which must favor the States.
 3. Then these “sales” if commerce at all, are not commerce “ with foreign nations,” or “
among the States”. If commerce at all, they must be held under the rules we are now applying, to
be internal commerce-the commerce that takes place entirely inside of a State. They are the
result of a whole year's business within the limits of the State.

4. This ordinance is a tax Law-not a commercial Law. If it interferes with any power of
Congress, it must, under these rules, be with the taxing power. But the taxing power is not by
these rules, or by any decision, or opinion, exclusive.

[11.] Nor, according to these rules, does the Ordinance conflict with the other clause of the
Constitution-“No State shall, without the consent of the Congress, lay any imposts or duties upon
imports or exports, except what may be absolutely necessary for executing its Inspection Laws,
and the net produce of all duties and imposts laid by any State on imports or exports, shall be for
the use of the Treasury of the United States -and all such Laws shall be under the control and
supervision of the Congress”.

1. The amount of sales is not “an import”-it is money-probably in this case bank bills; and of
banks created by the State itself-a product of the State-a product certainly subject to taxation, in
the hands in which it existed before it passed to these plaintiffs; and if so, it passed to them,
subject to all of its incidents. This is equally true of coin. But that it is not an import is enough.

*52 2. Nor is a tax upon the amount of sales of imports the same, in effect, as a tax upon
imports. The former sort of tax affects only the people of the State, which lays the tax; the latter
affects them, and it may also affect the people of all other States. A tax upon imports tends to
prevent imports from passing through the State that lays the tax, into any other; and to the extent
of the tendency, other States suffer. The States might, therefore, be very well prohibited from
taxing imports, without being prohibited from taxing the sale of imports.

The evil which this prohibition was intended to remedy, was this very evil of one State's
taxing the imports of another, as they passed through it, to reach that other. The Atlantic States
taxed all imports. The consequence was, that the interior States had to pay the tax upon all such
articles of import as they consumed. It was for the benefit of these interior States, that this
prohibition was put in the Constitution. The reason of the prohibition, then, does not extend to a
tax upon the consumption of imports consumed within the State itself, which imposes the tax. (5
Ell. Deb. 112.)

But say that this tax on “sales” is the same thing as a tax on imports, still, the tax ordinance is
not void.

In the view of the Constitution, a State's purpose for taxing imports or exports, may be that of
executing its Inspection Laws, or it may be some other.

If the purpose be to execute its Inspection Laws, the State may tax imports without the
consent of Congress. And she may make the tax as high as she pleases; but she can retain of the
„produce‟ of the tax, only as much as is necessary to defray the expenses of the execution of the
Inspection Laws. The residue she must pay to the United States. No part of the Law, under which
she imposes a tax for this purpose, is void. It is only subject to reversion and control by
Congress.

But if the State's purpose be any other, she cannot tax imports and exports without the consent
of Congress. It follows, as a matter of course, that with the consent of Congress, she may tax
them.

In the case, then, of this consent, the State Law, laying the tax, is not void.

Nor in this case will the produce of the tax have even to be paid to “the Treasury of the
United States”; for in this case there is no such thing as “net produce”. These terms apply to the
case of a tax for executing Inspection Laws. It must cost something to execute such Laws. That
something is to be paid out of the tax. The rest of the tax is “net produce.” This is to be for the
use of the Treasury of the U.S. These words, therefore, having reference to the expenses of
executing Inspection laws, can have no operation, if there is no Inspection Law. This view is
confirmed by the history of the clause. See 5 Ell. Deb. 486, 540-7.

But even if Congress does not consent to such a Law, the Law is not void. It is still a Law, but
a Law “subject to the revision and control of the Congress.” It may be that Congress though, not
consenting to such a Law, would still be satisfied with some little revision of it, so as to
accommodate the Law to its own policy-as by striking out of the Law an article which it prefers
to be on the “free list”; for example, coffee. This change it could effect by a “revision” or
“control” of the Law. Shall the Judiciary step in between the Congress and the State and defeat
the wishes of both? It is well known that Congress has, itself, taxed imports for the protection of
domestic manufactures, as well as for revenue. Now a tax on imports, by the States, would tend
to accomplish the former object, and therefore might meet with the decided approval of
Congress.

*53 Is it to be said that Congress cannot “revise” or “control” such a Law? it is, if the doctrine
be true, that such a Law is void. What is void, is not revisable-not controlable any more than
what does not exist is. It is an abuse of language to speak of revising and controlling any void
thing.

As, therefore, it is, “all such Laws” that shall be subject to the revision and control of the
Congress, “such Laws” must be Laws, and therefore they cannot be void.

This seems to me to be the plain meaning of this clause of the Constitution. It is, too, a
meaning entirely consistent with the most liberal rule of construing the Constitution. It is the one
imperatively required by the strict rule. Taking, then, this to be the meaning, viz:

1. That a State, without the consent of Congress, may tax imports to execute her Inspection
Laws.

2. That the “net produce” of such tax is to be for the use of the Treasury of the United States.

3. That with the consent of Congress, she may tax imports for any purpose.
 4. That even without the consent of Congress, she may tax imports for any purpose-subject
only to a power in Congress, to revise and control the tax.

5. That the part of the clause requiring the “net produce,” &c. to be for the use of the United
States, applies only to taxes on imports, laid for executing Inspection Laws. Let us apply it to the
tax in question, in this case, assuming the tax to be in fact, a tax on imports.

[13.] 1. Is this a tax for executing the Inspection Laws of the State? Quite a number of such
Laws exist, viz: Laws for the inspection of beef, pork, pitch, tar, turpentine, fire-wood, tobacco,
lumber and flour. ( Pr. Dig. “„ Staples.‟) It does not appear from the facts of the case, what is the
purpose of the tax. It does not, therefore, appear that so much of the tax as relates to imports, is
not for the purpose of executing the Inspection Laws of the State. Admit that more may be said
against the idea that this was the purpose than can be said in favor of it. That is not conclusive.
The question is, has the State broken the Constitution in authorizing this tax? Now it is the duty
of the Courts of the State to make every presumption possible, against the idea that the State has
violated the Constitution. And it is a possible thing for this ordinance to have been laid for the
purpose of executing the State's Inspection Laws.

2. If this be such a tax, it does not appear whether there is any net produce from it or not.

[14.] 3. Supposing this not to be a tax for inspection purposes, has Congress consented to its
being laid? It is certain that Congress has not expressly consented. But is express consent
necessary? There is nothing in the Constitution which says so. There is nothing in the practice of
men, or in the Municipal Law of men, or in the practice of nations, or the Law of nations that
says so. Silence gives consent, is the rule of business life. A tender of bank bills is as good as one
of coin, unless the bills are objected to. To stand by, in silence, and see another sell your
property, binds you. These are mere instances of the use of the maxim in the Municipal Law. In
the Law of Nations, it is equally potent. Silent acquiescence in the breach of a treaty binds a
Nation. ( Vattel, ch. 16, sec. 199, book 1. See book 2, sec. 142, et seq. as to usucaption and
prescription, and sec. 208 as to ratification.

*54 Express consent, then, not being necessary, is there any thing from which consent may be
implied? There is-length of time. The Ordinance was passed the 24th of January, 1842, and has
been in operation ever since. If Congress had been opposed to the Ordinance, it had but to speak,
to be obeyed. It spoke not-it has never spoken: therefore, it has not been opposed to the
Ordinance, but has been consenting to it.

[15.] 4. Say, however, that Congress has not consented to the Ordinance, then the most that
can be maintained is, that the Ordinance stands subject to “the revision and control of Congress.”
It stands a Law-a something susceptible of revision and control-not a something unsusceptible of
revision and control as a void thing would be.

5. The question, as to „net produce‟, cannot arise in the case in which Congress consents, or
that in which she refuses to consent to the tax. There cannot be such a thing as „net produce‟ in
either of those cases; but only in the case of a tax for inspection purposes.
 [16.] But let it be granted that the ordinance is void, does it follow that the decision of the
Court below ought to be reversed? By no means. If the Law is void, and yet is enforced, who is
injured by it? The seller of the import? Not at all. He is paid the tax by the purchaser from him
before he pays it to the City. The tax is ultimately paid by the consumer of the article. The price
or sale of which is taxed. The merchant puts the amount of the tax, as he does every other item of
the cost of the goods, in the price which he fixes upon them-and when he sells, he gets from the
purchaser that amount with the rest. If the tax injures any private person at all, therefore, that
person is the consumer of the taxed article, and not the seller of it. To apply this more directly to
the case. Padelford, Fay & Co. sold imports, and got the money for them. These imports had a
tax on them. The amount of that entered into the price at which they sold the imports. Therefore,
when they sold them at that price, they received the amount of this tax. They have it in hand. The
City wants to get it out of their hands. They object, and insist upon keeping it, saying the Law
under which it is claimed is void. Can this objection be allowed to be in their mouth? The
consumer is the injured man; and he, by buying the taxed article and paying the tax included in
the price, waives his objection to the tax. He is willing, for his money thus paid, to go to the City.
In fact, he pays it for the use of the City. He might give it to the City, if he choose to do so; and if
he did and should deliver it to Padelford, Fay & Co. to deliver to the City, would they be allowed
to retain it? Certainly not. Neither should they be allowed to retain this tax, so paid them by the
consumer, for the use of the City. It is a universal maxim, that Quilibet potest renunciare juri pro
se introducto. The consumer, therefore, can waive his right to object to this ordinance, on the
score of its being void; and he does this when he pays the tax it imposes on him. It is time
enough to hold a Law, made under the authority of the State, to be a violation of the
Constitution, when it is complained of by somebody that it injures. It is too soon to do this, when
the complaint is made by one that it does not injure, and one, who, if the complaint be allowed,
will be enabled to keep what, in justice and equity, he has no right to.

*55 But, indeed, no private person has a right to complain, by suit in Court, on the ground of
a breach of the Constitution. The Constitution, it is true, is a compact, but he is not a party to it.
The States are the parties to it. And they may complain. If they do, they are entitled to redress.
Or they may waive the right to complain. If they do, the right stands waived. Could not the
States, in their sovereign capacities, or Congress (if it has the power) as their agent, forgive such
a breach of the Constitution, on the part of a State, as that of imposing a tax on imports, or accept
reparation for it? In case this were done, what would become of the claims of private persons, for
damages for such breach? To let such claims be set up against the forgiven party, would be to do
away with the forgiveness. No, if there existed such claimants, they would have to appeal, each
to his own sovereign for redress. It was that sovereign's business to get enough from the
offending sovereign, to cover all private losses of his own citizens-and if he did not get enough
to do that, those citizens must look to him, alone for indemnity.

And this brings to my general conclusion, which is, that the judgment of the Court below,
ought to be affirmed.

14 Ga. 438, 1854 WL 1492 (Ga.)

END OF DOCUMENT
56 F. 576, 6 C.C.A. 31

Circuit Court of Appeals, Eighth Circuit.

CITY OF MINNEAPOLIS
v.
REUM.
No. 211.
May 29, 1893.

In Error to the Circuit Court of the United States for the District of Minnesota. Affirmed.

West Headnotes

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A foreign-born resident of the United States, who has merely declared his intention to become
a citizen, but has never complied with any other provision of the naturalization laws, is none the
less an alien because of the fact that the constitution and laws of Minnesota, wherein he resides,
have conferred the elective franchise and other privileges of citizenship on foreign subjects who
have declared their intention to be naturalized, and that he has actually voted for member of
congress and state and county officers.

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 Nor is his status altered by reason of the fact that, when he so declared his intention, he was
entitled, by reason of length of residence, to be naturalized, under Rev.St. § 2167, for that section
merely dispenses with the 2-year delay between the declaration of intention and the actual
admission to citizenship which is prescribed by section 2165.

*576 Statement by SANBORN, Circuit Judge:

On October 7, 1891, Frederick Reum, the defendant in error, brought this action against the
city of Minneapolis, the plaintiff in error, for a personal injury that resulted from its negligence.
He recovered judgment, to reverse which this writ of error was sued out. In his complaint he
alleged that he was an alien, and a subject of the king of Saxony, and this allegation was denied
by the defendant. The evidence disclosed these facts: The plaintiff was born in the kingdom of
Saxony in 1859. His father and mother were natives of that kingdom, and the former resided
there until he died, in the infancy of the plaintiff. In 1863, after his father's death, the plaintiff
and his mother came to the state of Minnesota, where they have since resided. In 1885 he was
married, and has since that time owned and occupied a farm in that state. On October 25, 1890,
he made a declaration of his intention to become a citizen of the United States in the circuit court
for the district of Minnesota; but he has never been admitted, or applied to be admitted, to
citizenship under the second and third paragraphs of section 2165 of the Revised Statutes of the
United States, or under any provisions of the acts of congress. The state of Minnesota has
conferred upon all foreign subjects resident within its borders who have declared their intention
to become citizens the elective franchise, the privilege of holding any office within its gift, and
practically all of the privileges of citizenship in the power of that state to confer. In November,
1890, the plaintiff voted for a member of congress and for state and county officers in
Minnesota. At the close of the evidence the defendant moved the court to dismiss the action for
want of jurisdiction, on the ground that the evidence failed to establish the allegation that the
plaintiff was an alien. The court denied the motion, and this ruling is the supposed error
assigned.

David F. Simpson, (Robert D. Russell, on the brief,) for plaintiff in error.

John W. Arctander, for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District

Judge.

SANBORN, Circuit Judge, (after stating the facts as above.)

In Lanz v. Randall, 4 Dill. 425, Mr. Justice Miller, who was then presiding*577 in the circuit
court for the district of Minnesota, held that a state could not make the subject of a foreign
government a citizen of the United States, and that a resident of Minnesota who was born a
subject of the grand duke of Mecklenburg, had declared his intention to become a citizen of the
United States many years before he brought his suit, had resided in the state of Minnesota for 15
years, had several times voted at elections held in that state where the constitution of the state
authorizes such residents to do so without naturalization, but had never applied to be or been
admitted to citizenship under the federal naturalization laws, was still an alien, and a subject of
the grand duke of Mecklenburg. This decision has been followed by the courts, and acquiesced
in by the profession. It is now vigorously challenged by counsel for plaintiff in error.

Section 2, art. 3, of the constitution of the United States, provides that the judicial power of
the nation shall extend to ‘controversies between a state or the citizens thereof and foreign states,
citizens, or subjects;’ and the acts of congress of March 3, 1887, (24 Stat. 552,) and of August
13, 1888, (25 Stat. 433,) confer jurisdiction of all these controversies in cases involving over
$2,000 upon the circuit courts. Every person at his birth is presumptively a citizen or subject of
the state of his nativity, and where, as in the case at bar, his parents were then both subjects of
that state, the presumption is conclusive. To the land of his birth he owes support and allegiance,
and from it he is entitled to the civil and political rights and privileges of a citizen or subject.
This relation, imposed by birth, is presumed to continue until a change of nationality is proved.
Minor v. Happersett, 21 Wall. 162, 167; Vatt. Law Nat. p. 101; Morse, Nat. 61, 125. A change of
nationality cannot be made by the individual at will. Each nation has the right to refuse to grant
the rights and privileges of citizenship to all persons not born upon its soil, and, if it determines
to admit them to those rights and privileges, it may fix the terms on which they shall be
conferred upon them. Naturalization is the admission of a foreign subject or citizen into the
political body of a nation, and the bestowal upon him of the quality of a citizen or subject.

The fourteenth amendment to the constitution of the United States provides that ‘all persons
born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the
United States and of the state wherein they reside.’ As the plaintiff was born in the kingdom of
Saxony, of parents who at the time of his birth were subjects of the king of Saxony, he is not a
citizen of the United States unless he has been naturalized therein. The United States, in the
exercise of their undoubted right, have prescribed the conditions upon compliance with which an
alien may become a citizen of this nation. The act of congress of April 14, 1802, (2 Stat. 153, c.
28, § 1; Rev. St. § 2165,) provides that ‘an alien may be admitted to become a citizen of the
United States in the following manner, and not otherwise. First. He shall, two years at least prior
to his admission, declare before a proper court his intention to become a citizen of the United
States, and to renounce*578 his allegiance to the potentate or sovereignty of which he may be at
the time a citizen or subject. Second. He shall, at the time of his application to be admitted,
declare, on oath, before some one of the courts above specified, that he will support the
constitution of the United States, and that he absolutely and entirely renounces and abjures all
allegiance and fidelity to every foreign prince, potentate, state, or sovereignty; and particularly,
by name, to the prince, potentate, state, or sovereignty of which he was before a citizen or
subject, which proceedings shall be recorded by the clerk of the court. Third. It shall be made to
appear to the satisfaction of the court admitting such alien that he has resided within the United
States five years at least, and within the state or territory where such court is at the time held one
year at least, and that during that time he has behaved as a man of a good moral character,
attached to the principles of the constitution of the United States, and well disposed to the good
order and happiness of the same; but the oath of the applicant shall in no case be allowed to
prove his residence.’
 By the act of May 26, 1824, (4 Stat. 69, c. 186, § 1; Rev. St. § 2167,) it is provided that:

‘Any alien, being under the age of twenty-one years, who has resided in the United States
three years next preceding his arriving at that age, and who has continued to reside therein to the
time he may make application to be admitted a citizen thereof, may, after he arrives at the age of
twenty-one years, and after he has resided five years within the United States, including the three
years of his minority, be admitted a citizen of the United States, without having made the
declaration required in the first condition of section twenty-one hundred and sixty-five; but such
alien shall make the declaration required therein at the time of his admission, and shall further
declare on oath, and prove to the satisfaction of the court, that, for two years next preceding, it
has been his bona fide intention to become a citizen of the United States; and he shall in all other
respects comply with the laws in regard to naturalization.’

There is no other provision of the acts of congress under which this plaintiff could have been
naturalized. The counsel for plaintiff in error, however, alleges that he became a citizen of the
United States (1) because at the time he declared his intention to do so he might have been
admitted to citizenship, under the provisions of section 2167; (2) because various acts of
congress have conferred certain privileges, and some have conferred all the privileges, of a
citizen upon foreign-born residents who had declared their intention to become citizens; and (3)
because the state of Minnesota has granted to such residents practically all the privileges of
citizenship in its power to bestow.

Before this plaintiff could become a naturalized citizen, the contract of allegiance and
protection that the relation of a citizen to his nation implies must be made between him and the
United States. The United States have prescribed the conditions under which such an alien may
make this contract, the place where, and the manner in which, it shall be made, and have
declared that it can be made on those conditions, and in that manner, and not otherwise. Rev. St.
§ 2165. The conditions are that he shall declare, on oath, that he will support the constitution;
that he *579 does renounce all allegiance to every foreign prince, potentate, state, or sovereignty,
and particularly to that one of which he was a subject; that it shall be made to appear to the court
that he has resided in the United States five years, and in the state where the court is held one
year; that he has behaved as a man of good moral character during all of this time, attached to the
principles of the constitution of the United States, and well disposed to the good order and
happiness of the same. The place where these conditions must be complied with is in one of the
courts of record named in the acts of congress, and the method by which the contract is to be
made is by plenary proof to that court of a compliance with these conditions, which must be
evidenced by its judgment. The plaintiff has complied with none of these terms. He has not even
applied to any court to be admitted to citizenship. He has not consented to become a citizen of
the United States on the terms they offer to him, or on any terms, but he still insists he is not a
citizen, and that he is still a subject of the king of Saxony. On the other hand, the United States
have not consented to accept the plaintiff as a citizen, on any terms, much less to waive all the
essential conditions without a compliance with which congress has declared an alien cannot be
naturalized. The minds of both parties must meet to make a contract, and, where neither party
consents, there can surely be no agreement.
 That the plaintiff, on October 25, 1890, had resided in Minnesota, as boy and man, long
enough to qualify him to become a citizen under section 2167, is not material. The conclusive
answer to the argument here urged is that the declaration of an intention to enter into a new
relation for which parties are qualified does not establish the relation. A man and woman who
declare their intention to be married at some future time do not thereby become husband and
wife. On the other hand, a declaration of an intention to enter into a relation or to do an act at
some future time is very persuasive evidence that the relation was not entered upon, and the act
was not done, at the time the declaration was made. It must be borne in mind that the only effect
of section 2167 was to relieve the plaintiff from waiting two years after filing his declaration
before being admitted to citizenship. That section expressly provides that in all other respects he
shall comply with the laws in regard to naturalization. The plaintiff's declaration on October 25,
1890, when he was qualified to be naturalized, that he intended at some future time to become a
citizen, coupled with the fact that he did not then apply to be admitted to citizenship, nor comply
with any of the conditions prescribed by law for his naturalization, compels the conclusion that
he did not then denationalize himself, but that he still remained a foreign subject.

That congress, in various acts, has conferred certain privileges and imposed certain burdens
upon ‘persons of foreign birth who shall have declared their intention to become citizens,’ at the
same time that it conferred like privileges or imposed like burdens upon our own citizens, as in
the act of March 3, 1863, (12 Stat. 731,) where all able-bodied male citizens of the United States,
and ‘persons *580 of foreign birth who shall have declared their intention to become citizens
under and in pursuance of the laws thereof,’ between certain ages, are declared to constitute the
national forces, and as in the patent laws, (Rev. St. § 4904,) the pre-emption laws, (Id. § 2259,)
and in the mining laws, (Id. § 2289,) where certain privileges are conferred on citizens of the
United States, and ‘those who have declared their intention to become such,’ in no way militates
against, but strongly supports, the correctness of our conclusion, because, if foreign-born
residents, by declaring their intention to become citizens, could ipso facto become such, it would
have been futile to name them in all of these acts as a class distinct from our citizens. That
congress has, by various special acts, many of which are referred to in the opinion of Chief
Justice Fuller in Boyd v. Nebraska, 143 U. S. 158, 12 Sup. Ct. Rep. 375, naturalized certain
classes of persons who had not complied with the terms of the general laws on this subject, is not
important here, because the plaintiff is not a member of any class thus naturalized. Nor is the
decision in Boyd v. Nebraska, supra, in point in this case because Gov. Boyd was there held to
be one of a class of foreign-born residents that was naturalized by the acts of congress admitting
the state of Nebraska into the Union. These acts conferred the rights of citizenship upon foreign-
born residents of Nebraska who had declared their intention to become citizens. The plaintiff was
a resident of Minnesota.

A single argument remains to be noticed, and that is that the state of Minnesota has conferred
on plaintiff the elective franchise, the right to hold any office in its gift, and, in reality, all the
rights and privileges of citizenship in its power to bestow; and therefore it is said he is a citizen
of that state, and not a foreign subject, and the federal court has no jurisdiction of this action. It
may be conceded that a state may confer on foreign citizens or subjects all the rights and
privileges it has the power to bestow, but, when it has done all this, it has not naturalized them.
They are foreign citizens or subjects still, within the meaning of the constitution and laws of the
United States, and the jurisdiction of the federal courts over controversies between them and
citizens of the states is neither enlarged nor restricted by the acts of the state. The power to
naturalize foreign subjects or citizens was one of the powers expressly granted by the states to
the national government. By section 8, art. 1, of the constitution of the United States, it was
provided that ‘the congress shall have the power to establish a uniform rule of naturalization.’
Congress has exercised this power, established the rule, and expressly declared that foreign-born
residents may be naturalized by a compliance with it, and not otherwise. This power, like the
power to regulate commerce among the states, was carved out of the general sovereign power
held by the states when this nation was formed and granted by the constitution to the congress of
the United States. It thus vested exclusively in congress, and no power remained in the states to
change or vary the rule of naturalization congress established, or to authorize any foreign subject
to denationalize*581 himself, and become a citizen of the United States, without a compliance
with the conditions congress had prescribed. Dred Scott v. Sandford, 19 How. 393, 405;
Slaughter House Cases, 16 Wall. 36, 73; Minor v. Happersett, 21 How. 162; Boyd v. Nebraska,
143 U. S. 135, 160, 12 Sup. Ct. Rep. 375.

In like manner, the states granted to the judiciary of the nation the power to determine a
controversy between a state or citizens thereof and foreign states, citizens, or subjects, (Const. U.
S. art. 3, § 2,) and congress conferred that power upon the circuit courts. The extent of the
jurisdiction of those courts is measured by the constitution and the acts of congress. A foreign-
born resident, who has not been naturalized according to the acts of congress, is not a ‘citizen’ of
the United States or of a state, within the definition given by the fourteenth amendment to the
constitution, but remains a foreign subject or citizen; and any controversy between him and a
citizen of a state which involves a sufficient amount is thus clearly within the jurisdiction of the
circuit courts, under any fair construction of the constitution and laws of the United States. The
jurisdiction thus conferred it is not in the power of any state, by its legislative or other action, to
take away, restrict, or enlarge, and the action of the state of Minnesota regarding the citizenship
of the plaintiff was not material in this case. Toland v. Sprague, 12 Pet. 300, 328; Cowless v.
Mercer Co., 7 Wall. 118; Railway Co. v. Whitton, 13 Wall. 270, 286; Phelps v. Oaks, 117 U. S.
236, 239, 6 Sup. Ct. Rep. 714; O'Connell v. Reed, 56 Fed. Rep. 531.

The result is that the power granted to congress by article 1, § 8, of the constitution of the
United States, to establish a uniform rule of naturalization, is exclusive; and the naturalization
laws enacted by congress in the exercise of this power constitute the only rule by which a foreign
subject may become a citizen of the United States or of a state, within the meaning of the federal
constitution and laws. It is not in the power of a state to denationalize a foreign subject who has
not complied with the federal naturalization laws, and constitute him a citizen of the United
States or of a state, so as to deprive the federal courts of jurisdiction over a controversy between
him and a citizen of a state, conferred upon them by article 3, § 2, of the constitution of the
United States, and the acts of congress.

A foreign subject who is qualified to become a citizen of the United States, under section
2167 of the Revised Statutes, does not become such by filing his declaration of intention so to
do. That section requires that he shall renounce allegiance to the sovereignty of which he is a
subject, take the oath of allegiance to the United States, and comply with the other conditions
prescribed in the second and third paragraphs of section 2165 of the Revised Statutes, in order to
become naturalized; and until he does so he remains a foreign subject.
 The court below was right in denying the motion to dismiss this action for want of
jurisdiction, and the judgment below is affirmed, with costs.

C.A.8 1893
CITY OF MINNEAPOLIS v. REUM
56 F. 576, 6 C.C.A. 31

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