that no sphere has a power of doing what is good or bad, generally, but constitutionally only; and that if these principles can be overturned by an ingenious management of words, all our checks, balances, limitations and divisions of power, are good for nothing.

SECTION 9.

THE BANK DECISION.-SUPREMACY.

"The people have said, "This constitution and the laws of the "United States made in pursuance thereof, shall be the supreme "law of the land." "It is a question of supremacy." "It is "of the very essence of supremacy to remove all obstacles to " its action within its own sphere, and so to modify every power "vested in subordinate governments, as to exempt its own " operations from their influence.”

"It is a question of supremacy." This expression, being unequivocal, had it remained unmodified, would have submitted to the publick consideration the plain question; whether the constitution of the union had, or had not, invested the federal government with a supreme power over the state governments. National questions ought to be candidly and fairly stated, to obtain a genuine national opinion. Out of complaisance to national opinion it was conceded by the court, that both the federal and state governments were sovereign within their respective spheres, to obtain as an attribute of sovereignty, a mutual right of creating corporations, and conciliate the usurpation practised by both. But, after allowing to both this attribute of sovereignty, a variety of equivocations are resorted to, for inhibiting to the states its other attributes, and assigning their exclusive enjoyment to the federal government. The means, the necessities, and the conveniences of the federal government as attributes of sovereignty are dilated, and those of the state governments consigned to oblivion. The federal government is acknowledged to be limited; but then it is said, that there is no phrase in the constitution which excludes incidental or implied powers, without admitting, that no enlargement of power can be inferred from this assertion in favour of the federal sovereignty, in which the state sovereignties would not participate. It is conceded, that the power of internal

taxation is not abridged with respect to the states, by the grant of a similar power to the government of the union, and that it is to be exercised concurrently by the two governments; but the concession is retracted, by inferring from the constitutional abridgment in the subjects of imports and exports, a right in the federal government still farther to abridge the concurrent right of the states to an unspecified extent. It is said that the power of the states is subordinate to, and may be controuled by the constitution of the United States; but then it is inferred, that it is also subordinate to and may be controuled by the federal government. But, as this alternation between concession and retraction was liable to formidable objections, it is finally abandoned, or shielded against confutation, by the assertion "that it is a question of supremacy, and that it is of the very "essence of supremacy to remove all obstacles to its action "within its own sphere, and so to modify every power vested " in subordinate governments, as to exempt its own operations from their influence." The sweeping power asserted in the conclusion of this extract, is obviously distinct from a power of removing obstacles within its own sphere, previously asserted; and is another instance, in which unlimited power is attempted to be inferred from a power acknowledged to be limited. Thus the wisdom of concession and the ingenuity of retraction are so constantly blended, as finally to invest a government acknowledged to be limited, with an unlimited power over the very restrictions imposed upon itself; and also over the state governments, acknowledged also to be its cosovereigns. To fortify this mode of reasoning, it became even necessary to find a higher power than sovereignty, in order to controul the admitted sovereignty of spheres; and though hitherto thought not to exist, it is supposed to be found in the words "paramount and supreme" so sublimated, as to reduce the sovereignty both of the state spheres and of the people to mere glow worms.

The declaration of independence declares the colonies to be free and independent states; the constitutions of many states assert the sovereignty of the people; and sovereignty has hitherto been considered as the highest political degree. In that sense it has been claimed, held and exercised by the people of every state in the union from the revolution to this

day. The attempt made by the court (before considered) to transplant sovereignty from the people of each state, by whom it has been and may be exercised, to the people of the United States, by whom it never has been nor can be exercised, under our present system of government, might fail of success; and therefore a new mode of destroying the sovereignty of the people is resorted to. Its jealousy is first appeased by the acknowledgment of spherical sovereignties, and then its degradation is finished by subjecting these sovereignties to supremacy. If the ground is a good one, all the states of the union took bad ground both in establishing and sustaining their independence. Supremacy was the literal claim of the British parliament over the colonies; and these colonies having only established sovereignties (an inferior political degree) have in fact tacitly acknowledged the British claim, which, being thus recognised, may be still prosecuted. It is also probable that the treaty failed to acknowledge our title to paramount and supreme power. If the treaty and the declaration of independence had not unfortunately committed this oversight, it would have narrowed the question considerably, by excluding from it a necessity for this entire section. Had these instruments declared the states to be sovereign, independent, paramount and supreme, then the language of the court's admission must have been correspondently changed; and instead of admitting that both the federal and state governments were each sovereign within its sphere, they must have admitted that each was sovereign, paramount and supreme within its own sphere. But, if this language, to give each word its excessive meaning, would have been tautological; then these instruments have committed no error, but merely avoided repetition, by rejecting useless synonymes. To admit, that the words "sovereign, paramount and supreme" are synonymes, to express the highest degree of political power, bestows on the two latter their most excessive meaning; whilst there is no excess at all in allowing that meaning to the first; therefore this admission bestows on the doctrine of the court the utmost force of which it is susceptible. And yet after thus doing for it all that can be done, and more than it can claim, it is obviously defeated by the error of giving to one synonyme a different meaning from another; just as it is impossible to

Q

prove, that though three apples are of the same weight, yet that one may be made heavier than the others, by calling it a supreme apple. But I shall endeavour to prove, that even this ground is stronger than the opinion of the court is entitled to, by shewing that" sovereignty" describes a higher power, than paramount or supreme," and therefore that it was never intended to be subjected to them.

The word "paramount" is not mentioned in the constitution, nor any where adopted, that I recollect, by our political phraseology; wherefore in considering the leader, it will be unnecessary to pay much respect to a feeble ally. Hence I proceed to shew, that the word "supreme" is invariably used by the constitution, not in a paramount but in a subordinate sense to sovereignty.

"The constitution, and the laws of the United States which "shall be made in pursuance thereof, and all treaties made or "which shall be made, under the authority of the United States, "shall be the supreme law of the land, and the judges, in "every state, shall be bound thereby, any thing in the consti"tution or laws of any state to the contrary notwithstanding." This is the clause of the constitution, supposed by the court to confer on congress a power over the state governments and state sovereignties. These state sovereignties made, may revoke, or can alter the constitution itself, and therefore the supremacy bestowed upon the constitution, being some power subservient to the state sovereignties, demonstrates that the word "supreme" was used in a sense subordinate to these sovereignties; and being used in that sense, it is impossible that the people intended it as a révocation of those powers, or of any of their appurtenances, or of the spherical sovereignties, previously bestowed, never recalled, and specially reserved to the state governments, by the sovereignties, to whom the whole constitution and all its words, are subordinate. Ac cording to the construction adopted by the court, the stile of the constitution ought to have been this. "We, state sove"reignties, do hereby establish a federal government invested "with limited powers, and retain our state governments, with "all their powers not delegated to the federal government, "each of which governments shall be sovereign within their respective spheres, but over these sovereignties, we also cre