Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-03-02
The State Of Arkansas vs.. Sam.
UeI w. Williams.
OPINION.
BF Tx COURT, Mr.. JUSTICE PIKE.

( CONTINUED FROM YEsrERDAT1
/ We receive the word Constitution from
the Latin; but its political meanin,
comes 10 US from England. The Eng
lish government consists Of the King
I Lords, Commons and Courts The
British Constitution is the jus # uOynlC
Of the government, not its powers or fac
/ uties, but its system, the aggregate O
! rules and principles applied in govern.
] ing: the ideal, developed and applied in
| government and Quintillion's defini-
Z tion is literally correct, in regard to the
( English Constitution of government
which is for the most part unwritten,
! since it consists or is found partly in
I statute {dtC, partly in ancient customs,
/ partly in the judgments Of the Courts
and partly in cOBlpGcts between the
Barons and the King, and between the
/ people and the Crown
A government therefore, is not a
body polite. France Is so its govern
ment Is not. The iirectOry is the
| government Of the corporation. We
call the written instruf@nt the Con-
stitutiOn, as We call the written instru-
meut the contract This is accurate
enough for everyday use; but not for
! the processes of logic. Ths government
/ has not, IN law, any will, or any powers
! or faculties, OF its own. The directory
/ speaks the viii, and exercises the powers
! and faculties Of the corporation. The
! government IL not a person in law.
| It does not make treaties or wage war,
or contract debts, or sue. The nation,
I the people ia their corporate character,
or the States in theirs as the case may
| be, DO all that, by the officers who COM
/ pose the government as their agents.
/ The verbal criticisms Of Mr.. Webster
I were beneath the dignity of the subject
aud unworthy of the Senate and unfit to
Z be there resorted to. "There is no Ian
I guage, " he said, 4" i'm the whole Consti-
tuti8n, applicable to a Confederation Of
States" What then are the plain de-
claratiOBs, clear, positive, precise, that il
is to be established JctiUccJ5 The States
that ratify il that the States alone,
each by itself, can add to or take away
from It by amendment; that new States
may be admitted intOthe JuiOn2 That the
States are included within the Union 9'
II the States did not make the COnstitu-
ton and we're not The only parties TO it,
how could they add tO il by amendment,
even against the will Of a large majority
Of the people Of all? And if, not max
ing it, they could add 10 it. was it not,
when once amended, partly made by
them and partly not, they parties to part
OF il and not 10 the Tesidue2
1t is singular that MIR. Webster did not
see. that If his idea Of a [" constitution
was correct, and it was not a league or
tue fruit OF a league or compact, the term
" Fsderal Constitution was selfcontra-
dictOry; because J0du5 means league,
compact or covenant; and the phrase
4" FedcrUl Constitution - means, necessa-
riIy, a constitution by league or compact.
Yet he used the phrase, and was a mem
Der Of the " Federal party.
"If the States ~ he asked, be parties,
as States, what are their rights, and what
their respective covenants and stipula-
ti8ns expressed The States engage for
nothing. They promise nothing. In
the articles Of confederation they did
make promises and did enter into en-
gagements, and did plight the faith Of
each State for their fulfilment; but in
the Constitution there is nothing OF that
kind. The reason is, that in the Consti-
tuition it is the people who speak, and not
the States"
That is TO say-because there are no
such promises and engagements Formally
EXPRESSED, therefore we must infer that
the States did not make the constitution,
and that il is not evidence of a compact
between them. That mode Of argument
was not legitimate or satisfactory. The
first inquiry was, who, ilJ point Of Jdct
did make the constitution Upon that
il depended whether there were promises
and engagements, and not upon the for
mulas Of words. Courts always look
through the form, into the substance of
things.
"The people" he said, " Ordain the
HT
the States and 10 the Legislatures Of the
States, IN the language of injunction and
prohibition. The Constitution utters t.
behests in the name and by the author
ity Of the people, and it does not exact
from the States any plighted faith to
maintain IL. The Constitution creates
direct relations between the government
and individuals; and oD the other hand,
it owes to every citizen high and solemn
duties:" and It's possession Of these pow
ers, and its owing these duties, he con-
tended, clearly distinguish it from q mere
COnfederacy Of States.
To show that there was something
mnEe than a mere Confederacy, ii was
only necessary 10 allude 10 the fact that
the States were not liable, individually
and ja sOliOO, for debts contracted by
the United States. The question was
not as 10 mCrc COnfederacy, but
whether the States had, by compact be-
tween themselves, agreed jointly to ex-
ercise certain Of their powers Of govern
ment and administration, not a. mere
league OF partnership, but by means of
corporate and national personality Gre
atcd by them for those purposes.
Almost the first lesson q lawyer learns
is, 10 look through the words into the
substance OF things. II makes no differ
enee in what particular form any
instrument is drawn and a promise
implied is as much promise
as one expressed. One reading over a
deed Of conveyance, and finding no
warranty or express covenant OF any
kind, would hardly say the granter
here engages for nothing, promises
n0thing' nor reading a charter OF in
corporation: those parties are COM
manded, empowered, restricted, en-
Joined, prohibited, by this act OF the
supreme legislative power. They engage
for nothing, promise nothing
As the argument was wholly based on
and dealt with the force ana meaning OF
words and formulas Of phrase, it is quite
legitimate to reply TO it by the same
mode Of argument BY the constitution
the appointment Of officers Of the Militia,
anu tAAG eNAAlAAiAAtF VI AA1llAllk tAlt
are Tesergcd 'to' the States respectively
What is the legal force and effect Of the
word "reserving," used there? a res
ervation in a HNieed or grant,
is when one, parting with many
things or powers by gift or grant,
TCfdins and does not grant one or the
aggregate Of powers or things possessed
by him. The reservation OF single
power in the constitution, to each State
respectively, is necessarily a reservation
IN each State, Of what she does not
grant, and IL as necessarily follows that
She is party 10 the constitution, and
that all the grants Of powers contained
in it are made by the States. The peO-
ple Of all the States, as Ollc people, could
not reserve a power to one State.
They could only reserve to them
selves. something which they might
nave granted and chose not 10 grant.
So. by the 10Th amendments " the
noWers not delegated to the United States
by the constitution, nor prohibited by it
10 the States, are reserved to the States