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Penhallow v. Doane's Administrators. ' 3 D.

point should be decided in the affirmative, it will render *unnecessary a decision of many important questions that [ * 90 ] otherwise arise in this cause. This previous point, however, cannot be decided on satisfactory principles, without in some mea. sure tracing the origin of the general powers of congress from the time of the earliest exercise of their authority to the period when definite and express powers were solemnly and formally given to them by the articles of confederation. I shall therefore make a few preliminary observations on this subject, though I by no means think it material to go into a full detail.

Under the British government, and before the opposition to the measures of the parliament of Great Britain became necessary, each province in America composed, as I conceive, a body politic, and the several provinces were no otherwise connected with each other than as being subject to the same common sovereign. Each province had a distinct legislature, a distinct executive subordinate to the king, a distinct judiciary, and in particular the claim as to taxation, which began the contest, extended to a separate claim of each province to raise taxes within itself; no power then existed or was claimed, for any joint authority on behalf of all the provinces, to tax the whole. There were some disputes as to boundaries, whether certain lands were within the bounds of one province or another, but nobody denied that where the boundaries of any one province could be ascertained, all the permanent inhabitants within those boundaries were members of the body politic, and subject to all the laws of it. When acts were passed by the parliament of Great Britain which were thought unconstitutional and unjust, and when every hope of redress by separate applications appeared desperate, then was conceived the noble idea which laid the foundation of the present independence and happiness of this country, (though independence was not then in contemplation) of forming a common council to consult for the common welfare of the whole, so far as an opposition to the measures of Great Britain was concerned. In order to compose this common council each province chose for itself, in its own way, and by its own authority, without any previous concerted plan of the whole, deputies to attend at a general meeting to be held in this city. Some appointed by their assemblies, others by conventions, some perhaps in other modes, but in whatever way the appointment was made, it was notoriously done with the hearty consent and approbation of the great body of the people in each province, and therefore the appointment was unexceptionable to all those who thought the opposition just, and a union of the whole in the measures of opposition necessary. Each province even appointed as many or as


Penhallow v. Doane's Administrators. 3 D.

few deputies as it pleased, at its own discretion, which was not

objected to, because the members of congress did not [ * 91 ] * vote individually, but the votes given in congress were by

provinces, as they afterwards were subsequent to the de. claration of independence, and until the present constitution of the United States was formed by States.

The powers of congress at first were indeed little more than advi. sory; but in proportion as the danger increased their powers were gradually enlarged, either by express grant, or by implication arising from a kind of indefinite authority suited to the unknown exigencies that might arise. That an undefined authority is dangerous, and ought to be intrusted as cautiously as possible, every man must admit, and none could take more pains than congress for a long time did, to get their authority regularly defined by a ratification of the articles of confederation. But, that previously thereto they did exercise, with the acquiescence of the States, high powers of what I may perhaps with propriety, for distinction, call external sovereignty, is unquestionable. Among numerous instances that might be given of this, (and which were recited very minutely at the bar,) were the treaties of France, in 1778, which no friend to his country at the time questioned, in point of authority, nor has been capable of reflecting upon since without gratitude and satisfaction. Whether, among these powers comprehended within their general authority, was that of instituting courts for the trial of all prize causes, was a great and awful question; a question that demanded deep consideration, and not perhaps susceptible of an easy decision. That in point of prudence and propriety it was a power most fit for congress to exercise, I have no doubt. I think all prize causes whatsoever ought to belong to the national sovereignty. They are to be determined by the law of nations. A prize court is, in effect, a court of all the nations in the world, because all persons in every part of the world are concluded by its sentences in cases clearly coming within its jurisdiction. Even in the case of citizen and citizen I do not think it a proper subject for mere municipal regulation, because, as was observed at the bar, a citizen may make a colorable claim which the court may not be able to detect, and yet a foreigner be fatally injured by it. In case of a bonâ fide claim it may appear to be good by the proofs offered to the court, but another person living at a distance may have a superior claim which he has no opportunity to exhibit. It is true a general monition issues, and this is considered notice to all the world, but though this be the construction of the law from the necessity of the case, it would be absurd to infer in fact that all the world had actual notice, and therefore no superior claimant to the one before the court could possibly exist. The court, therefore, can never

Penhallow v. Doane's Administrators. 3 D.

know with certainty whether citizens only are interested in the inquiry. But the words * " citizen and citizen” in [ * 92 ] this case are very ill applied to the parties in question, they not having been citizens of the sanie State, the captors having been citizens of New Hampshire, and the claimant a citizen of Massachusetts Bay. It never was considered that before the actual signature of the articles of confederation a citizen of one State was to any one purpose a citizen of another. He was, to all substantial purposes, as a foreigner to their forensic jurisprudence. If rigorous law had been enforced, perhaps he might have been deemed an alien, without an express provision of the State to save him. And as an unjust decision upon the law of nations in the case of a foreigner to all the States might, if redress had not been given, have ultimately led to a foreign war, an unjust decision on the same law in one State, to the prejudice of a citizen of another State, might have ultimately led, if redress had not been given, to a civil war, an evil much the more dreadful of the two. I have made these observations merely as to the propriety that this power should have been delegated, and therefore to show that if it was assumed, without adequate authority, it was not an arbitrary and unnatural assumption of a power that ought exclusively to belong to a single State; but by no means with a view to argue, that because it was proper to be given, therefore it was actually given, a position which, as it would lead to dangerous and inadmissible consequences, cannot be the ground of a legitimate argument.

Some of the arguments at the bar, if pushed to an extreme, would tend to establish that congress had unlimited power to act at their discretion, so far as the purposes of the war might require; and it was even said, that the jus belli never was in any one of the States, and therefore it could not be delegated by any State to congress. My principles on this subject are totally different from those which were the foundation of this opinion, and as it is a point of no small importance, and I find on this occasion, as I have formerly done on others, considerable mistakes, as I conceive, by very able men, owing to a misapprehension of terms, I will endeavor to state my own principles on the subject with so much clearness, that whether my opinion be right or wrong, it may at least be understood what the opinion really is.

If congress, previous to the articles of confederation, possessed any authority, it was an authority, as I have shown, derived from the people of each province in the first instance. When the obnoxious acts of parliament passed, if the people in each province had chosen to resist separately, they undoubtedly had equal right to do so, as to


Penhallow v. Doane's Administrators. 3 D. join in general measures of resistance with the people of the other

provinces, however unwise and destructive such a policy [ * 93 ] might, and undoubtedly * would have been. If they had

pursued this separate system, and afterwards the people of each province had resolved that such province should be a free and independent State, the State from that moment would have become possessed of all the powers of sovereignty, internal and external, namely, the exclusive right of providing for their own government, and regulating their intercourse with foreign nations, as completely as any one of the ancient kingdoms or republics of the world, which never yet had formed or thought of forming any sort of federal union whatever. A distinction was taken at the bar between a State and the people of the State. It is a distinction I am not capable of comprehending. By a State forming a republic, speaking of it as a moral person, I do not mean the legislature of the State, the executive of the State, or the judiciary, but all the citizens which compose that State, and are, if I may so express myself, integral parts of it; all together forming a body politic. The great distinction between monarchies anetrepublics, at least our republics, in general is, that in the former the monarch is considered as the sovereign, and each individual of his nation as subject to him, though in some countries with many important esial limitations; this I say is generally the case, for it has not been so una versally. But in a republic, all the citizens, as such, are equal, and no citizen can rightfully exercise any authority over another, but in virtue of a power constitutionally given by the whole community, and such authority when exercised is, in effect, an act of the whole community which forms such body politic. In such governments, therefore, the sovereignty resides in the great body of the people, but it resides in them not as so many distinct individuals, but in their politic capacity only. Thus A, B, C, and D, citizens of Pennsylvania, and as such, together with all the citizens of Pennsylvania, share in the sovereignty of the State. Suppose a State to consist exactly of the number of 100,000 citizens, and it were practicable for all of them to assemble at one time and in one place, and that 99,999 did actually assemble, the State would not be in fact assembled. Why? Because the State in fact is composed of all the citizens, not of a part only, however large that part may be, and one is wanting. In the same manner as ninety-nine pounds is not a hundred, because one pound is wanting to complete the full sum. But as such exactness in human affairs cannot take place, as the world would be at an end, or involved in universal massacre and confusion if entire unanimity from every society was required; as the assembling in large numbers, if practicable as to the actual meetPenhallow r. Doane's Administrators. 3 D. ing of all the citizens, or even a considerable part of them, could be productive of no rational result, because there could be no general debate, no consultation of the whole, nor * of conse- [ * 94 ) quence a determination grounded on reason and reflection, and a deliberate view of all the circumstances necessary to be taken into consideration, mankind have long practised, except where special exceptions have been solemnly adopted, upon the principle that the majority shall bind the whole, and in large countries, at least, that representatives shall be chosen to act on the part of the whole. But when they do so, they decide for the whole, and not for themselves only. Thus, when the legislature of any State passes a bill by a majority competent to bind the whole, it is an act of the whole assembly, not of the majority merely. So when this court gives a judgment by the opinion of the majority, it is the judgment, in a legal sense, of the whole court. So I conceive, when any law is passed in any State in pursuance of constitutional authority, it is a law of the whole State acting in its legislative capacity; as are also executive and judiciary acts, constitutionally authorized, acts of the whole State in its executive or judiciary capacity, and not the personal acts alone of the individuals composing those branches of government. The same principles apply as to legislative, executive, or judicial acts in the United States, which are acts of the people of the United States, in those respective capacities, as the former are of the people of a single State. These principles have long been familiar in regard to the exercise of a constitutional power as to treaties. These are deemed the treaties of the two nations, not of the persons only whose authority was actually employed in their formation. There is not one principle that I can imagine which gives such an effect as to treaties, that has not such an operation on any other legitimate act of government, all powers being equally derived from the same fountain, all held equally in trust, and all, when rightfully exercised, equally binding upon those from whom the authority was derived.


I conclude, therefore, that every particle of authority which originally resided either in congress, or in any branch of the State governments, was derived from the people who were permanent inhabitants of each province in the first instance, and afterwards became citizens of each State; that this authority was conveyed by each body politic separately, and not by all the people in the several provinces or States jointly, and of course, that no authority could be conveyed to the whole but that which previously was possessed by the several parts ; that the distinction between a State and the people of a State has, in this respect, no foundation, each expression in substance meaning the same thing; consequently, that one ground of argument at

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