stitution the supreme law of the state, make that of the United States, the supreme law of the land, embraced in the Union; by each declaring it so within their respective boundaries, and uniting all the constituent parts, by a deed, signed and executed by the people of each. They could grant and modify the powers they parted with, while the grant was in fieri; when consummated, they had no further power over it, for, by their own consent, a case arising under it could be decided only by the judicial power, as in a case arising under a grant of land by A. to B. So, when a state renounces all power to emit a bill of credit; to make a compact with another state, without the consent of congress; to impair the obligation of a contract, and declares its exercise to be prohibited; the consequence is plain. Limitations are imposed by itself, which it cannot pass; the act is declared by the people to be void, by being a violation of a supreme law, by which they have bound themselves. By this law, they order their judges to obey it; and by which, this Court must adjudge the act of the state to be void, for the want of power, in obedience to the command of that "single sovereign power,' which could bind and had bound itself, to refer all cases arising under its own supreme law, to the judicial power of its own creation.

If a state has thereby became "shorn of its beams," and thenceforth shines with less than "its original brightness;" it is by its own. act: and for the future, it must move within the circle by which it has confined its own action, until it shall be enlarged by another power, to which each state has bound itself to appeal. The amending power, existing in "the states, respectively, or the people," to be exercised pursuant to the fifth article of the constitution; which must be taken and construed as a clause of revocation, in a deed, grant, or charter, by an individual, the king, a proprietary, a colony, a state in its legislative capacity, or by the people as the sovereign thereof. It is a declaration by the grantor, that he reserves, and in the mode he has prescribed, will exercise his right to modify or revoke whatever he has granted; will remove any restrictions he has imposed on himself, whenever the requisite number of the separate parties concur, with such exceptions as are specified in the revoking clause. Subject to this power of revocation, the sixth article declares what the effect and obligation of the grant shall be; then the tenth amendment is added by way of a proviso, a condition and limitation, operating on the whole constitution; declaring that what is not granted or prohibited, is reserved to the organic power; "the states respectively, or the people," (respectively).

THE RESPECT PAID TO THE OPINIONS OF THE SUPREME COURT OF THE UNITED STATES ON CONSTITUTIONAL QUESTIONS.

Such is the meaning of these terms, according to the language of the instrument in which they are used, the precedent acts of the people, the states, and the congress, the convention, and this Court, which, in any other cases than those arising under the constitution, would have been held to be conclusive, and closed all discussion.

There will not be found in judicial history, an instance of a question arising on the words or terms of a will, a deed, contract, law, or treaty, that would have been deemed an open one, after such a course of adjudication on their construction as has been already shown. Nor is there any other country, in which the decisions of its own supreme judicial tribunal would be overlooked, and the interpretation of its fundamental laws be sought in the opinions of foreign writers, or the adjudications of the inferior courts of foreign nations. In England, one judgment of the house of lords settles the law; and it is not suffered to be again discussed in an inferior court. Here too, the same effect is given to a final adjudication of this Court on any other question arising on a written instrument, save on the constitution. Yet their repeated definitions of the terms states, and people, of contracts, their obligations, cessions of territory, of jurisdiction, by deeds and laws of states, or treaties with foreign powers, have been unavailing. All profess to respect this Court, as competent to the high functions it exercises, as the constitutional arbiter of cases arising under the constitution: all profess to revere that instrument, as the best and most perfect emanation of human wisdom: but practically it would seem, that neither its framers or its constituted expositor, have expressed their intention in intelligible language. We find that every thing which has the semblance of judicial opinion, whether from the bench or bar of Westminster Hall, at this day; is pressed upon us as evidence of the meaning of a grant made fifty years since, without an inquiry how the law which bears upon it, was then. We are asked, in effect, to overlook its great feature as the supreme law of the land, speaking in the same language, from the time it was proposed to the present, and through the whole intervening period; and to make its construction accord with the fluctuations of judicial opinions in England, which we well know have been very great within the last fifty years.

THE EFFECTS OF BEING INFLUENCED BY LATE DECISIONS IN

ENGLAND.

If we follow this course in our opinions, and it should appear on investigation, that within this time the law has been reformed in England by judicial power, and we follow the example, one of two consequences are inevitable. The constitution will have one meaning in its application to the old states, and a different one as to the new ones; according to the law as laid down by some of the courts in England, a judge at nisi prius, or some elementary writer, at the different periods when each state became a party to it: or the law, as laid down at this day, must be incorporated into the constitution, as "a fresh infusion;" and it be made to speak retrospectively, in a language wholly unknown to its framers, and those who adopted it; nay, wholly different from what was understood, and universally accepted at the time, as declared by this Court in one uniform series of decisions for forty years. In either case, we give to these opinions of foreigners, which have no reference to our constitution, of

men who know not its principles; not only a weight which they have not at home, but we virtually make this tribunal subject to the appellate power of foreign courts.

If, as an individual, I could be willing to waive the quantum of colonial dependence, which would be implied in thus recognising any judicial authority over us, as yet remaining in the land of our ancestors; I would expect at least, that it should be only that of a court of as high authority there as this Court has here; not of a court whose judgment may be reversed by the king's bench, exchequer chamber, and house of lords; the opinion of a single judge, which may be overruled in bank; or of a writer, whose lucubrations are read in neither court, or at nisi prius. As a judge, I am bound to take the law of a grant or charter as it was "at the time of making them, and their ancient allowance;" in the administration of the system of jurisprudence which pervades the land, I take it as it was when it was adopted, by the consent of the people, or their legislatures, by the constitution, congress, and this Court. As a constituent member of a court of the last resort, I feel bound by its solemn and deliberate expositions of the law, in cases involving the collisions of power between the state and federal governments; restraints on either, or the rights of individuals or of corporations, secured by either. The same rule must be the law in the thirteen old, and the thirteen new states, which have been admitted into the Union. If we suffer our minds to be influenced by other authority, we must expound our supreme law, our great bond of union, not by the rules and principles which were taken as settled law, at the time of its adoption, but as it now appears to be the doctrine of the day in foreign courts, which may be changed before the next term.

If the constitution is to be taken as a certain grant, an uniform line of power, one law, regulating old and new states alike, operating over the whole territory, whether within the original boundaries of the states, or late acquisitions by treaty; it must speak in the same language, and its terms have, in 1837, the same interpretation as they had in 1787, otherwise it must forever remain unsettled.

Judicial reformations of the existing law, are as much liable to be reformed, and the law restored to what it was, as present law is subject to future reforms; if we do not respect the opinions of our predecessors, it cannot be expected that our successors will respect ours. We must, therefore, look with a single eye to what the law was in 1787, as declared by this Court; and carry its settled principles into new cases as they arise: if we do not, it will become impossible to sustain the principles of the constitution against the assaults which will be made upon it. Our only safety is, in its being received as a standard rule of action and judgment, the same through all time, directing the government of the Union, and of the present and future states, as this Court say, "We cannot comprehend that train of reasoning which would maintain that the extent of power granted by the people is to be ascertained, not by the nature and terms of the grant, but by its date. Some state constitutions were formed before,

some since, that of the United States. We cannot believe that their relation to each other is, in any degree, dependent upon this circumstance. Their respective powers must, we think, be precisely the same as if they had been formed at the same time." 4 Wh. 410.

If, then, the respective powers of the state and general governments are to be tested by the law, as it was, fifty years ago; I cannot regard its subsequent changes, when judicially examining the questions now before us. I cannot look to late adjudications in England as the rule by which to determine the effect of a grant of a ferry in 1640; a charter to a corporation for erecting a bridge in 1785; or what was the obligation of the contract granting them when it is made; but look only to the law as it then was. In so doing, I follow another principle settled by this Court, in Saunders v. Ogden; that though the obligation of a contract cannot be impaired by a law made subsequent to the contract, yet all contracts are subject to the regulations prescribed by laws, existing when the contract is made; 12 Wh. 368, 9. By a contrary course, the principle is completely reversed; we repudiate the law in force when the contract and grant was made; we apply to it the law as subsequently altered: so that while we are bound to declare a state law void, so far as it impairs the obligation of an existing contract, we give effect to an English decision, which may produce the same result. As an example, let the case of a grant of a ferry be taken to illustrate my position. In Saville, 11, 14, we have the definition of a ferry, given by the court of exchequer chamber, in 23 Eliz. 1581; which was then the highest court in the kingdom, as the house of lords had not then assumed their supreme appellate jurisdiction. It is admitted by the judges below, and counsel here, that the common law as to ferries is, and has ever been, the law of Massachusetts; notwithstanding which, an opinion given in 1835, by a lord chief baron of the exchequer, has been relied on in opposition to the case in Saville, to show the nature and extent of a ferry granted in 1640. Whether the latter or the former opinion may now be the received law in England, matters not; the colonists brought with them the law of ferries, as it was at the time of their emigration; this ancient grant of the colony must be construed accordingly. To be consistent, we must suspend a final judgment till the present court of exchequer chamber has reversed the principle established as the law for two hundred and fifty years. For it may so happen, that that court will not readily introduce any innovation into the common law on a subject so important, on the authority of a single judge; this Court certainly would not so far respect the opinion of one of its own members. That these views are peculiar, is evident from the course of argument and opinion: but their peculiarity is, in itself, no reason for abandoning them; if they are not erroneous, they are safe as a guide to a true interpretation of a grant of power, to be exercised by the several governments in the United States, whose basis was the constitution of England, and the common law; as the great system of jurisprudence, from which all our institutions arose.

THE POLITICAL CONDITION OF THE COLONIES OF GREAT BRITAIN.

I now proceed to trace the constituent power of government, in the several states, as the constituent power of the United States, of which the people are the head, the "caput et finis;"-the emperor, king, prince, potentate, sovereign, each of his own empire, realm, nation, or state; as the primary, original fountain of all legislative, executive, and judicial powers, granted or restrained, in and by the constitution, to the colonies of Great Britain: who became states of this Union, and were its constituents in 1788: according to my position, each in their own right, "absolute and unlimited in matters of government, commerce and possessions;" as held and enjoyed by them respectively, and not collectively, or in the aggregate, as one people, one state, or nation. The proposition is stated in these terms, as well to support it by the political and judicial authorities which bear favourably on it, as to negative the antagonist proposition; which having been laid down by authority of both descriptions, more weighty and influential, than mine can or ought to be; I must either make it the rule for my judgment, by submission to its results, or show by some paramount authority to which we all profess to submit, that it is not founded on historical facts, or the laws of the land.

"It is a fundamental maxim, and necessary principle of English tenures, that the king is the universal lord, and original proprietor of all the lands in his kingdom; and that no man doth or can possess any part of it, but what has mediately or immediately been derived as a gift from him, to be held upon feodal services.' 2 Bl. Com. 51. The feudal tenures were abolished under the commonwealth, and their abolition confirmed at the restoration, by the 12 Car. 2, ch. 24; and by the 4th section it was enacted, "that all tenures hereafter to be created by the king," &c., "shall be in free and common soccage, and shall be adjudged to be in free and common soccage only." 3 Ruff. 192. He is however the universal occupant, as all property is presumed to have been held by him. Co. Litt. 1; 4 Bac. 153; 7 D. C. D. 76; D. 63. By his charters, he gave both soil and jurisdiction to the proprietors of New Jersey, Pennsylvania, Maryland, and North Carolina; and one was presumed as to Delaware: by which these provinces were created principalities or seignories, in the nature of counties palatine in England, with the addition of general powers of legislation, subject to revision by the king in council. 1 Bl. Com. 108. In these provinces, the proprietary was deemed the count palatine, acting according to the law of the Roman and German empires, in the place, and by the deputed authority of the emperor. Seld. tit. Hon. 378, et seq. The imperator, or king of England, a sovereign equally independent in his dominions as any sovereign in his empire, 1 Bl. Com. 241, 2; retaining, therefore, only this ultimate power of revision in his privy council; the king, as an emperor, had created these provinces as counties palatine, which is the highest franchise known to the law of England, in