Trial of the Officers and Crew of the Privateer Savannah, on the Charge of Piracy, in the United States Circuit Court for the Southern District of New York

by A. F. Warburton

"When the people create a single entire Government, they grant at once all the rights of sovereignty. The powers granted are indefinite and incapable of enumeration. Every thing is granted that is not expressly reserved in the constitutional charter, or necessarily retained as inherent in the people. But when a Federal Government is erected with only a portion of the sovereign power, the rule of construction is directly the reverse, and every power is reserved to the members that is not, either in express terms or by necessary implication, taken away from them and rested exclusively in the Federal Head."

"This rule has not only been acknowledged by the most intelligent friends to the Constitution, but is plainly declared by the instrument itself. This principle might be illustrated by other instances of grants of power to Congress, with a prohibition to the States from exercising the like powers; but it becomes unnecessary to enlarge upon so plain a proposition, as it is removed beyond all doubt by the 10th article of the amendments to the Constitution. That article declares that 'the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' The ratification of the Constitution by the Convention of this State was made with the explanation and understanding that 'every power, jurisdiction and right which was not clearly delegated to the General Government remained to the people of the several States, or to their respective State governments.' There was a similar provision in the articles of Confederation, and the principle results from the very nature of the Federal Government, which consists only of a defined portion of the undefined mass of sovereignty vested in the several members of the Union. There may be inconveniences, but generally there will be no serious difficulty, and there cannot well be any interruption of the public peace in the concurrent exercise of those powers. The powers of the two Governments are each supreme within their respective constitutional spheres. They may each operate with full effect upon different subjects, or they may, as in the case of taxation, operate upon different parts of the same subject."

I now refer to the Massachusetts Bill of Rights of 1780, art. 4. It reads:

"The people of this Commonwealth have the sole and exclusive right of governing themselves as a free, sovereign and independent State; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction and right, which is not, or may not hereafter be, by them expressly delegated to the United States of America, in Congress assembled."

I also refer to the New Hampshire Bill of Rights, of September, 1792:

"Art. 7. The people of this State have the sole and exclusive right of governing themselves as a free, sovereign and independent State; and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction and right pertaining thereto, which is not, or may not hereafter be by them expressly delegated to the United States of America, in Congress assembled."

I next beg leave to refer your honors to No. 32 of the Federalist, by Hamilton, who says:

"An entire consolidation of the States into one complete national sovereignty would imply an entire subordination of the parts, and whatever power might remain in them would be altogether dependent on the general will. But as the plan of the Convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not by that act exclusively delegated to the United States."

Also, to the Federalist, No. 39, by Madison, in which he says:

"The difference between a Federal and National Government, as it relates to the operation of the Government, is, by the adversaries of the plan of the Convention, supposed to consist in this, that in the former the powers operate upon the political bodies composing the Confederacy in their political capacities; in the latter, on the individual citizens composing the nation in their individual capacities. On trying the Constitution by this criterion, it falls under the national and not the federal character, though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. But the operation of the Government on the people in their individual capacities, in its ordinary and most essential proceedings, will, on the whole, in the sense of its opponents, designate it, in this relation, a National Government.