ours a system of governments. Taking all the parts together, the people of forty-four independent and sovereign States, confederated by a solemn constitutional compact into one great federal community, with a system of government, in all of which powers are separated into the great primary divisions of the constitution-making and the law-making powers; those of the latter class being divided between the common and joint government of all the States, and the separate and local governments of each State respectively; and finally the powers of both distributed among three separate and independent departments—legislative, executive and judicial—present, in the whole, a political system as remarkable for its grandeur as it is for its novelty and refinement of organization. （Calhoun's Works, 112, 113, 199.) Under the English form of government, this division with limitations is unknown and parliament is supreme. Madison, in the Federalist, says: ‘The Federal and State governments are, in fact, but different agents and trustees of the people, instituted with different powers and designed for different purposes.’ Hamilton says: ‘In the compound republics of America, the power surrendered by the people is first divided between two distinct governments, and the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other at the same time that each will be controlled by itself.’
The Union is not the primary social or political relation of those who formed it. The State governments were already organized and were adequate to all the purposes of their municipal concerns. The Federal government was established only for such purposes as the State governments and the confederation could not sufficiently answer, namely, the common purpose of all the States. The people of the States, not as a unit, not in the aggregate, but separately, hold in themselves all governmental power. One portion they granted to the State governments; another to the government of the Union, and the residue they retained undelegated in themselves. The grants were in trust for their benefit, and created the division of political power between the Federal and the State governments, which division constitutes the gist and sum total of the controversy between the government at Washington and the seceding States. During and soon after a war waged for eight years to resist a claim to legislate for them locally and internally, inferred from parliamentary supremacy, the colonies or states constructed two unions and established in both a division of power bearing a strong similitude to that upon which they were willing to have continued their union with England; namely: yielding to her the regulation of war, peace, and commerce, and retaining for themselves local and internal legislation. The first union ‘retains’ to the States the sovereignty and rights not delegated to the United States; the second ‘reserves’ to the States the powers not delegated to the United States. The first confers upon Congress almost all the powers of importance bestowed by the second, except that of regulating commerce, the second only extends the means for executing the same powers by bestowing on Congress a limited power of taxation; but these means were by neither intended to supersede nor defeat those ends retained or reserved by both. By the first, unlimited requisitions to meet ‘the charges of war and all other expenses for the common defense and general welfare’ were to be made by Congress upon the States. By the second, Congress is empowered to lay taxes, under certain restrictions, to ‘provide for the common defense and general welfare.’ A sovereign or absolute right to dispose of these requisitions or taxes without any restriction is not given to Congress by either. The general terms used in both are almost literally the same and, therefore, they must have been used in both under the same impression of their import and effect. （Taylor's Construction Construed, 55.)
An obiter dictum of Justice Miller, of the Supreme court, gives point to the value of restrictions and of enforcing them. ‘To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored individuals to aid private enterprises and build up private fortunes is none the less a robbery because it is done under the favor of the law.’
The Constitution made by States.
As everything in this discussion depends on the Constitution it seems prudent to state with some particularity its origin, its establishment and its terms. The confederation was found to be inadequate to the ends of an effective government. The states adopted conflicting and even hostile commercial regulations and trade suffered from these embarrassments. The legislature of Virginia, impressed with the necessity of a government of larger powers, appointed in 1786 commissioners to meet commissioners from other States, at Annapolis, to prepare for adoption by the States a uniform plan of commercial regulations. Some met and recommended to their respective legislatures to appoint delegates to meet in general convention at Philadelphia for the purpose of reforming the government as the interests of the States might require. Congress approved the recommendation and suggested a convention of delegates to be appointed by the several States to meet in Philadelphia and to report to Congress and the several legislatures such alteration of the Articles of Confederation as shall, when agreed to in Congress and confirmed by the States, render the federal constitution adequate to the exigencies of government and the preservation of the Union. Accordingly, the convention was composed of deputies appointed by the States, and they voted as States. Madison, in recording their action, on agreeing to the Constitution, says: ‘It passes in the affirmative, all the States concurring.’ It was transmitted to the several State legislatures to be by them submitted to State conventions and each State for itself ratified at different times, without concert of action, except in the result to be ascertained. As the jurisdiction of a State was limited to its own territory, its ratification was limited to its own people. The Constitution got its validity, its vitality, not from the inhabitants as constituting one great nation, nor from the people of all the States considered as one people, but from the concurrent action of a prescribed number of States, each acting separately and pretending to no claim or right to act for or control other States. That each of these States had the right to decline to ratify and remain out of the Union for all time to come, no sane man will deny. Rhode Island and North Carolina did, in the undoubted exercise of an undisputed right, refuse to enter the compact until after the government was organized and Washington entered upon his duties as president. ‘The assent and ratification of the people,’ says Madison, ‘not as individuals composing an entire nation, but as composing the distinct and independent States to which they belong, are the sources of the Constitution. It is, therefore, not a national but a federal compact.’
Virginia, in her ratification as a distinct, sovereign community, had said: ‘The delegates do, in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States, may 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.’ （5 Bulletin of the Bureau of Rolls, 145.) Calhoun's Works, 248-251.
Maryland declared that nothing in the 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 Union.’ New York more explicitly said: ‘That the powers of government may be reassumed by the people whenever it should 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 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; but such clauses are to be construed either as exceptions to certain specified powers or as inserted merely for greater caution.’ Rhode Island lingered until 1790, and then adopted the cautious phraseology of New York, specifying certain rights and declaring that they shall not be abridged or violated and that the proposed amendments would speedily become a part of the Constitution, gave her assent to the compact, but declared that ‘the powers of government may be reassumed by the people, whenever it shall become necessary to their happiness.’ （5 Bureau of Rolls, 140-145, 190, 191, 311.) Other States showed equal concern and jealousy. Besides the clear assertion on the part of ratifying States of the right to reassume delegated powers, a larger number were so apprehensive and distrustful of federal encroachment, so