next clause of the constitution relied upon, is that which declares that “the supreme legislative power within this State shall be vested in a Senate and Assembly.” This, it is said, excludes the idea of any other legislative power operating within the State. But the more obvious construction of this clause, and that which best consists with the situation and views of the country at this time, with what has been done before and since the formation of our constitution, and with those parts of the constitution itself which acknowledge the Federal Government, is this: “In the distribution of the different parts of the sovereignty in the particular government of this State, the legislative authority shall reside in a Senate and Assembly”; or, in other words, “the legislative authority of the particular government of the State of New York shall be vested in a Senate and Assembly.” The framers of the constitution could have had nothing more in view than to delineate the different departments of power in our own State government, and never could have intended to interfere with the formation of such a Constitution for the Union as the safety of the whole might require. The justness of this construction will be further elucidated by that part of the constitution which prescribes, “that the supreme executive authority of the State shall be vested in a governor.” If the former clause excludes the grant of legislative power, this must equally exclude the grant of the executive power, and the consequence would be that there could be no Federal Government at all.
It will be of no avail to say, that there is a difference in the two cases in the mode of expression: that, in one, the terms of description are “within the State”; in the other, “of the State.” In grammar, or good sense, the difference in the phrases constitutes no substantial difference in the meaning, or if it does, it concludes against the objection; for the words, within this State, which are applied to the legislative power, have a certain precision that may be supposed to intend a distinction between that legislative power which is to operate within this State only, and that which is to operate upon this State in conjunction with the others. But I lay no stress on this observation. In my opinion the legislative power “within this State” or the legislative power “of this State,” amount in substance to the same thing, and therefore (as has been already observed) if the constitution prohibits the delegation of legislative power to the Union, it equally prohibits the delegation of executive power—and the Confederacy must then be at an end; for without legislative or executive power, it becomes a nullity.
Unfortunately for the objection, if it proves any thing it proves too much. It proves that the powers of the Union in their present form are an usurpation on the constitution of this State. This will appear not only from the reasoning adduced, but from this further consideration,—that the United States are already possessed of legislative as well as executive authority. The objects of executive power are of three kinds: to make treaties with foreign nations, to make war and peace, to execute and interpret the laws. This description of the executive power will enable us the more readily to distinguish the legislative; which in general may be defined the power of prescribing rules for the community.
The United States are authorized to require from the several States as much money as they judge necessary for the general purposes of the Union, and to limit the time within which it is to be raised; to call for such a number of troops as they deem requisite for the common defence in time of war; to establish rules in all cases of capture by sea or land; to regulate the alloy and value of coin, the standard of weights and measures, and to make all laws for the government of the army and navy of the Union. All these are powers of the legislative kind, and are declared by the Confederation to be binding upon all the States.
The first is nothing less than a power of taxing the States in gross, though not in detail; and the last is the power of disposing of the liberty and lives of the citizens of this State, when in arms for the common defence. That the powers enumerated are all, or most of them, of a legislative nature, will not be denied by the law members on the other side of the question. If the constitution forbids the grant of legislative power to the Union, all those authorities are illegal and unconstitutional, and ought to be resumed.
If, on the contrary, those authorities were properly granted, then it follows that the constitution does not forbid the grant of legislative power, and the objection falls to the ground; for there is nothing in the constitution permitting the grant of one kind of legislative authority, and forbidding that of an other. The degree or nature of the powers of legislation which it might be proper to confer upon the Federal Government, would in this case be a mere question of prudence and expediency, to be determined by general considerations of utility and safety.
The principle of the objection under consideration would not only subvert the foundation of the Union as now established, would not only render it impossible that any Federal Government could exist, but would defeat some of the provisions of the constitution itself. This last idea deserves particular attention.
The nineteenth clause makes it the duty of the governor “to correspond with the Continental Congress.” The twentieth provides “that the judges and chancellor shall hold no other office than delegate to the General Congress”; and the thirtieth directs “that delegates to represent this State in the General Congress of the United States of America shall be annually appointed.”
Now, sir, I ask, if Congress were to have neither executive nor legislative authority, to what purpose were they to exist? To what purpose were delegates to be annually appointed to that body? To what purpose were these delegates to represent this State? Or how could they be said to represent it at all?
Is not the plain import of this part of the constitution, that they were to represent this State in the General Assembly of the United States, for the purpose of managing the common concerns of the Union? And does not this necessarily imply that they were to be clothed with such powers as should be found essential to that object? Does it not amount to a constitutional warrant to the Legislature to confer those powers, of whatever kind they might be?
To answer these questions in the negative would be to charge the constitution with the absurdity of proposing to itself and end, and yet prohibiting the means of accomplishing that end.
The words “to represent this State” are of great latitude, and are of themselves sufficient to convey any power necessary to the conduct and direction of its affairs in connection with the other parts of the Confederacy.
In the interpretation of laws it is admitted to be a good rule to resort to the co-existing circumstances, and collect from thence the intention of the framers of the law. Let us apply this rule to the present case.
In the commencement of the Revolution delegates were sent to meet in Congress with large discretionary powers. In short, generally speaking, with full power “to take care of the republic.” In the whole of this transaction the idea of an Union of the colonies was carefully held up. It pervaded all our public acts.
In the Declaration of Independence we find it continued and confirmed. That declaration, after setting forth its motives and causes, proceeds thus: “We, therefore, the representatives of the United States of America in General Congress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do in the name and by the authority of the good people of these colonies, solemnly publish and declare that these United Colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain is, and ought to be, totally dissolved; and that, as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things that independent states may of right do.”
Hence we see that the Union and Independence of these States are blended and incorporated in one and the same act; which, taken together, clearly imports that the United States had in their origin full power to do all acts and things which independent states may of right do; or, in
