"We" seem to be laboring over the definition of a State, and the distinction between a State government (the three branches, with all the officials) and a State as a political or juridical personality (the People). Perhaps Justice Iredell can explain it better than I.
IREDELL, J.
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 join in general measures of resistance with the people of the other Provinces, however unwise and destructive such a policy might and undoubtedly 3 U. S. 93
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 (viz., 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 and Republics (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 special limitations. This, I say, is generally the case, for it has not been so universally.
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, 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 99£ 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 meeting 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
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of consequence a determination grounded on reason and reflection, and a deliberate view of all the circumstances necessary to be taken into consideration, mankind has long practiced (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 a 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 of 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 the bar, tending to show the superior sovereignty of Congress in the instance in question, was not tenable, and therefore that upon that ground the exercise of the authority in question can not be supported.
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I have already, however, stated my opinion that from the nature of our political situation it was highly reasonable and proper that Congress should be possessed of such an authority, and this is a consideration of no small weight to induce an inference that they actually possessed it when their powers were so indefinite and when it seems to have been the sense of all the states that Congress should possess all the incidents to external sovereignty, or, in other words, the power of war and peace, so far as other nations were concerned, though the states in some particulars differed as to the construction of the general powers given for that purpose.
Two principles appear to me to be clear. 1. The authority was not possessed by Congress unless given by all the states. 2. If once given, no state could, by any act of its own, disavow and recall the authority previously given without withdrawing from the confederation.