Chapter X…

Chapter X

False Statements of the Grounds for Separation.--Slavery not the Cause, but an Incident.--The Southern People not "Propagandists" of Slavery.--Early Accord among the States with regard to African Servitude.--Statement of the Supreme Court.--Guarantees of the Constitution.--Disregard of Oaths.--Fugitives from Service and the "Personal Liberty Laws."--Equality in the Territories the Paramount Question.--The Dred Scott Case.--Disregard of the Decision of the Supreme Court.--Culmination of Wrongs.--Despair of their Redress.--Triumph of Sectionalism.

At the period to which this review of events has advanced, one State had already withdrawn from the Union. Seven or eight others were preparing to follow her example, and others yet were anxiously and doubtfully contemplating the probably impending necessity of taking the same action. The efforts of Southern men in Congress, aided by the coöperation of the Northern friends of the Constitution, had failed, by the stubborn refusal of a haughty majority, controlled by "radical" purposes, to yield anything to the spirit of peace and conciliation. This period, coinciding, as it happens, with the close of a calendar year, affords a convenient point to pause for a brief recapitulation of the causes which had led the Southern States into the attitude they then held, and for a more full exposition of the constitutional questions involved.

The reader of many of the treatises on these events, which have been put forth as historical, if dependent upon such alone for information, might naturally enough be led to the conclusion that the controversies which arose between the States, and the war in which they culminated, were caused by efforts on the one side to extend and perpetuate human slavery, and on the other to resist it and establish human liberty. The Southern States and Southern people have been sedulously represented as "propagandists" of slavery, and the Northern as the defenders and champions of universal freedom, and this view has been so arrogantly assumed, so dogmatically asserted, and so persistently reiterated, that its authors have, in many cases, perhaps, succeeded in bringing themselves to believe it, as well as in impressing it widely upon the world.

The attentive reader of the preceding chapters--especially if he has compared their statements with contemporaneous records and other original sources of information--will already have found evidence enough to enable him to discern the falsehood of these representations, and to perceive that, to whatever extent the question of slavery may have served as an occasion, it was far from being the cause of the conflict.

I have not attempted, and shall not permit myself to be drawn into any discussion of the merits or demerits of slavery as an ethical or even as a political question. It would be foreign to my purpose, irrelevant to my subject, and would only serve--as it has invariably served, in the hands of its agitators--to "darken counsel" and divert attention from the genuine issues involved.

As a mere historical fact, we have seen that African servitude among us--confessedly the mildest and most humane of all institutions to which the name "slavery" has ever been applied--existed in all the original States, and that it was recognized and protected in the fourth article of the Constitution. Subsequently, for climatic, industrial, and economical--not moral or sentimental--reasons, it was abolished in the Northern, while it continued to exist in the Southern States. Men differed in their views as to the abstract question of its right or wrong, but for two generations after the Revolution there was no geographical line of demarkation for such differences. The African slave-trade was carried on almost exclusively by New England merchants and Northern ships. Mr. Jefferson--a Southern man, the founder of the Democratic party, and the vindicator of State rights--was in theory a consistent enemy to every form of slavery. The Southern States took the lead in prohibiting the slave-trade, and, as we have seen, one of them (Georgia) was the first State to incorporate such a prohibition in her organic Constitution. Eleven years after the agitation on the Missouri question, when the subject first took a sectional shape, the abolition of slavery was proposed and earnestly debated in the Virginia Legislature, and its advocates were so near the accomplishment of their purpose, that a declaration in its favor was defeated only by a small majority, and that on the ground of expediency. At a still later period, abolitionist lecturers and teachers were mobbed, assaulted, and threatened with tar and feathers in New York, Pennsylvania, Massachusetts, New Hampshire, Connecticut, and other States. One of them (Lovejoy) was actually killed by a mob in Illinois as late as 1837.

These facts prove incontestably that the sectional hostility which exhibited itself in 1820, on the application of Missouri for admission into the Union, which again broke out on the proposition for the annexation of Texas in 1844, and which reappeared after the Mexican war, never again to be suppressed until its fell results had been fully accomplished, was not the consequence of any difference on the abstract question of slavery. It was the offspring of sectional rivalry and political ambition. It would have manifested itself just as certainly if slavery had existed in all the States, or if there had not been a negro in America. No such pretension was made in 1803 or 1811, when the Louisiana purchase, and afterward the admission into the Union of the State of that name, elicited threats of disunion from the representatives of New England. The complaint was not of slavery, but of "the acquisition of more weight at the other extremity" of the Union. It was not slavery that threatened a rupture in 1832, but the unjust and unequal operation of a protective tariff.

It happened, however, on all these occasions, that the line of demarkation of sectional interests coincided exactly or very nearly with that dividing the States in which negro servitude existed from those in which it had been abolished. It corresponded with the prediction of Mr. Pickering, in 1803, that, in the separation certainly to come, "the white and black population would mark the boundary"--a prediction made without any reference to slavery as a source of dissension.

Of course, the diversity of institutions contributed, in some minor degree, to the conflict of interests. There is an action and reaction of cause and consequence, which limits and modifies any general statement of a political truth. I am stating general principles--not defining modifications and exceptions with the precision of a mathematical proposition or a bill in chancery. The truth remains intact and incontrovertible, that the existence of African servitude was in no wise the cause of the conflict, but only an incident. In the later controversies that arose, however, its effect in operating as a lever upon the passions, prejudices, or sympathies of mankind, was so potent that it has been spread, like a thick cloud, over the whole horizon of historic truth.

As for the institution of negro servitude, it was a matter entirely subject to the control of the States. No power was ever given to the General Government to interfere with it, but an obligation was imposed to protect it. Its existence and validity were distinctly recognized by the Constitution in at least three places:

First, in that part of the second section of the first article which prescribes that "representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective members, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and, excluding Indians not taxed, three fifths of all other persons." "Other persons" than "free persons" and those "bound to service for a term of years" must, of course, have meant those permanently bound to service.

Secondly, it was recognized by the ninth section of the same article, which provided that "the migration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by Congress prior to the year one thousand eight hundred and eight." This was a provision inserted for the protection of the interests of the slave-trading New England States, forbidding any prohibition of the trade by Congress for twenty years, and thus virtually giving sanction to the legitimacy of the demand which that trade was prosecuted to supply, and which was its only object.

Again, and in the third place, it was specially recognized, and an obligation imposed upon every State, not only to refrain from interfering with it in any other State, but in certain cases to aid in its enforcement, by that clause, or paragraph, of the second section of the fourth article which provides as follows:

"No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due."

The President and Vice-President of the United States, every Senator and Representative in Congress, the members of every State Legislature, and "all executive and judicial officers, both of the United States and of the several States," were required to take an oath (or affirmation) to support the Constitution containing these provisions. It is easy to understand how those who considered them in conflict with the "higher law" of religion or morality might refuse to take such an oath or hold such an office--as the members of some religious sects refuse to take any oath at all or to bear arms in the service of their country--but it is impossible to reconcile with the obligations of honor or honesty the conduct of those who, having taken such an oath, made use of the powers and opportunities of the offices held under its sanctions to nullify its obligations and neutralize its guarantees. The halls of Congress afforded the vantage-ground from which assaults were made upon these guarantees. The Legislatures of various Northern States enacted laws to hinder the execution of the provisions made for the rendition of fugitives from service; State officials lent their aid to the work of thwarting them; and city mobs assailed the officers engaged in the duty of enforcing them.

With regard to the provision of the Constitution above quoted, for the restoration of fugitives from service or labor, my own view was, and is, that it was not a proper subject for legislation by the Federal Congress, but that its enforcement should have been left to the respective States, which, as parties to the compact of union, should have been held accountable for its fulfillment. Such was actually the case in the earlier and better days of the republic. No fugitive slave-law existed, or was required, for two years after the organization of the Federal Government, and, when one was then passed, it was merely as an incidental appendage to an act regulating the mode of rendition of fugitives from justice--not from service or labor.[27]

In 1850 a more elaborate law was enacted as part of the celebrated compromise of that year. But the very fact that the Federal Government had taken the matter into its own hands, and provided for its execution by its own officers, afforded a sort of pretext to those States which had now become hostile to this provision of the Constitution, not only to stand aloof, but in some cases to adopt measures (generally known as "personal liberty laws") directly in conflict with the execution of the provisions of the Constitution.

The preamble to the Constitution declared the object of its founders to be, "to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." Now, however (in 1860), the people of a portion of the States had assumed an attitude of avowed hostility, not only to the provisions of the Constitution itself, but to the "domestic tranquillity" of the people of other States. Long before the formation of the Constitution, one of the charges preferred in the Declaration of Independence against the Government of Great Britain, as justifying the separation of the colonies from that country, was that of having "excited domestic insurrections among us." Now, the mails were burdened with incendiary publications, secret emissaries had been sent, and in one case an armed invasion of one of the States had taken place for the very purpose of exciting "domestic insurrection."

It was not the passage of the "personal liberty laws," it was not the circulation of incendiary documents, it was not the raid of John Brown, it was not the operation of unjust and unequal tariff laws, nor all combined, that constituted the intolerable grievance, but it was the systematic and persistent struggle to deprive the Southern States of equality in the Union--generally to discriminate in legislation against the interests of their people; culminating in their exclusion from the Territories, the common property of the States, as well as by the infraction of their compact to promote domestic tranquillity.

The question with regard to the Territories has been discussed in the foregoing chapters, and the argument need not be repeated. There was, however, one feature of it which has not been specially noticed, although it occupied a large share of public attention at the time, and constituted an important element in the case. This was the action of the Federal judiciary thereon, and the manner in which it was received.

In 1854 a case (the well-known "Dred Scott case") came before the Supreme Court of the United States, involving the whole question of the status of the African race and the rights of citizens of the Southern States to migrate to the Territories, temporarily or permanently, with their slave property, on a footing of equality with the citizens of other States with their property of any sort. This question, as we have seen, had already been the subject of long and energetic discussion, without any satisfactory conclusion. All parties, however, had united in declaring, that a decision by the Supreme Court of the United States--the highest judicial tribunal in the land--would be accepted as final. After long and patient consideration of the case, in 1857, the decision of the Court was pronounced in an elaborate and exhaustive opinion, delivered by Chief-Justice Taney--a man eminent as a lawyer, great as a statesman, and stainless in his moral reputation--seven of the nine judges who composed the Court, concurring in it. The salient points established by this decision were:

1. That persons of the African race were not, and could not be, acknowledged as "part of the people," or citizens, under the Constitution of the United States;

2. That Congress had no right to exclude citizens of the South from taking their negro servants, as any other property, into any part of the common territory, and that they were entitled to claim its protection therein;

3. And, finally, as a consequence of the principle just above stated, that the Missouri Compromise of 1820, in so far as it prohibited the existence of African servitude north of a designated line, was unconstitutional and void.[28] (It will be remembered that it had already been declared "inoperative and void" by the Kansas-Nebraska Bill of 1854.)

Instead of accepting the decision of this then august tribunal--the ultimate authority in the interpretation of constitutional questions--as conclusive of a controversy that had so long disturbed the peace and was threatening the perpetuity of the Union, it was flouted, denounced, and utterly disregarded by the Northern agitators, and served only to stimulate the intensity of their sectional hostility.

What resource for justice--what assurance of tranquillity--what guarantee of safety--now remained for the South? Still forbearing, still hoping, still striving for peace and union, we waited until a sectional President, nominated by a sectional convention, elected by a sectional vote--and that the vote of a minority of the people--was about to be inducted into office, under the warning of his own distinct announcement that the Union could not permanently endure "half slave and half free"; meaning thereby that it could not continue to exist in the condition in which it was formed and its Constitution adopted. The leader of his party, who was to be the chief of his Cabinet, was the man who had first proclaimed an "irrepressible conflict" between the North and the South, and who had declared that abolitionism, having triumphed in the Territories, would proceed to the invasion of the States. Even then the Southern people did not finally despair until the temper of the triumphant party had been tested in Congress and found adverse to any terms of reconciliation consistent with the honor and safety of all parties.

No alternative remained except to seek the security out of the Union which they had vainly tried to obtain within it. The hope of our people may be stated in a sentence. It was to escape from injury and strife in the Union, to find prosperity and peace out of it. The mode and principles of their action will next be presented.

[Footnote 27: "There was but little necessity in those times, nor long after, for an act of Congress to authorize the recovery of fugitive slaves. The laws of the free States and, still more, the force of public opinion were the owners' best safeguards. Public opinion was against the abduction of slaves; and, if any one was seduced from his owner, it was done furtively and secretly, without show or force, and as any other moral offense would be committed. State laws favored the owner, and to a greater extent than the act of Congress did or could. In Pennsylvania there was an act (it was passed in 1780, and only repealed in 1847) discriminating between the traveler and sojourner and the permanent resident, allowing the former to remain six months in the State before his slaves would become subject to the emancipation laws; and, in the case of a Federal officer, allowing as much more time as his duties required him to remain. New York had the same act, only varying in time, which was nine months. While these two acts were in force, and supported by public opinion, the traveler and sojourner was safe with his slaves in those States, and the same in the other free States. There was no trouble about fugitive slaves in those times."--(Note to Benton's "Abridgment of Debates," vol. i, p. 417.)]

[Footnote 28: The Supreme Court of the United States in stating (through Chief-Justice Taney) their decision in the "Dred Scott case," in 1857, say: "In that portion of the United States where the labor of the negro race was found to be unsuited to the climate and unprofitable to the master, but few slaves were held at the time of the Declaration of Independence; and, when the Constitution was adopted, it had entirely worn out in one of them, and measures had been taken for its gradual abolition in several others. But this change had not been produced by any change of opinion in relation to this race, but because it was discovered from experience that slave-labor was unsuited to the climate and productions of these States; for some of these States, when it had ceased, or nearly ceased, to exist, were actively engaged in the slave-trade; procuring cargoes on the coast of Africa, and transporting them for sale to those parts of the Union where their labor was found to be profitable and suited to the climate and productions. And this traffic was openly carried on, and fortunes accumulated by it, without reproach from the people of the States where they resided."

This statement, it must be remembered, does not proceed from any partisan source, but is extracted from a judicial opinion pronounced by the highest court in the country. In illustration of the truthfulness of the latter part of it, may be mentioned the fact that a citizen of Rhode Island (James D'Wolf), long and largely concerned in the slave-trade, was sent from that State to the Senate of the United States as late as the year 1821. In 1825 he resigned his seat in the Senate and removed to Havana, where he lived for many years, actively engaged in the same pursuit, as president of a slave-trading company. The story is told of him that, on being informed that the "trade" was to be declared piracy, he smiled and said, "So much the better for us--the Yankees will be the only people not scared off by such a declaration."]

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Chapter I

The Original Confederation.--"Articles of Confederation and Perpetual Union."--Their Inadequacy ascertained.--Commercial Difficulties.--The Conference at Annapolis.--Recommendation of a General Convention.--Resolution of Congress.--Action of the Several States.--Conclusions drawn therefrom.

When certain American colonies of Great Britain, each acting for itself, although in concert with the others, determined to dissolve their political connection with the mother-country, they sent their representatives to a general Congress of those colonies, and through them made a declaration that the Colonies were, and of right ought to be, "free and independent States." As such they contracted an alliance for their "common defense," successfully resisted the effort to reduce them to submission, and secured the recognition by Great Britain of their separate independence; each State being distinctly recognized under its own name--not as one of a group or nation. That this was not merely a foreign view is evident from the second of the "Articles of Confederation" between the States, adopted subsequently to the Declaration of Independence, which is in these words: "Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States in Congress assembled."

These "Articles of Confederation and Perpetual Union between the States," as they were styled in their title, were adopted by eleven of the original States in 1778, and by the other two in the course of the three years next ensuing, and continued in force until 1789. During this period the General Government was vested in the Congress alone, in which each State, through its representatives, had an equal vote in the determination of all questions whatever. The Congress exercised all the executive as well as legislative powers delegated by the States. When not in session the general management of affairs was intrusted to a "Committee of the States," consisting of one delegate from each State. Provision was made for the creation, by the Congress, of courts having a certain specified jurisdiction in admiralty and maritime cases, and for the settlement of controversies between two or more States in a mode specifically prescribed.

The Government thus constituted was found inadequate for some necessary purposes, and it became requisite to reorganize it. The first idea of such reorganization arose from the necessity of regulating the commercial intercourse of the States with one another and with foreign countries, and also of making some provision for payment of the debt contracted during the war for independence. These exigencies led to a proposition for a meeting of commissioners from the various States to consider the subject. Such a meeting was held at Annapolis in September, 1786; but, as only five States (New York, New Jersey, Delaware, Pennsylvania, and Virginia) were represented, the Commissioners declined to take any action further than to recommend another Convention, with a wider scope for consideration. As they expressed it, it was their "unanimous conviction that it may essentially tend to advance the interests of the Union, if the States, by whom they have been respectively delegated, would themselves concur, and use their endeavors to procure the concurrence of the other States, in the appointment of commissioners, to meet at Philadelphia on the second Monday in May next, to take into consideration the situation of the United States, to devise such further provisions as shall appear to them necessary to render the Constitution of the Federal Government adequate to the exigencies of the Union, and to report such an act for that purpose to the United States in Congress assembled, as, when agreed to by them, and afterward confirmed by the Legislatures of every State, will effectually provide for the same."

It is scarcely necessary to remind the well-informed reader that the terms, "Constitution of the Federal Government," employed above, and "Federal Constitution," as used in other proceedings of that period, do not mean the instrument to which we now apply them; and which was not then in existence. They were applied to the system of government formulated in the Articles of Confederation. This is in strict accord with the definition of the word constitution, given by an eminent lexicographer:[29] "The body of fundamental laws, as contained in written documents or prescriptive usage, which constitute the form of government for a nation, state, community, association, or society."[30] Thus we speak of the British Constitution, which is an unwritten system of "prescriptive usage"; of the Constitution of Massachusetts or of Mississippi, which is the fundamental or organic law of a particular State embodied in a written instrument; and of the Federal Constitution of the United States, which is the fundamental law of an association of States, at first as embraced in the Articles of Confederation, and afterward as revised, amended, enlarged, and embodied in the instrument framed in 1787, and subsequently adopted by the various States. The manner in which this revision was effected was as follows. Acting on the suggestion of the Annapolis Convention, the Congress, on the 21st of the ensuing February (1787), adopted the following resolution:

"Resolved, That, in the opinion of Congress, it is expedient that, on the second Monday in May next, a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and the several Legislatures, such alterations and provisions therein 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."

The language of this resolution, substantially according with that of the recommendation made by the commissioners at Annapolis a few months before, very clearly defines the objects of the proposed Convention and the powers which it was thought advisable that the States should confer upon their delegates. These were, "solely and expressly," as follows:

1. "To revise the Articles of Confederation with reference to the 'situation of the United States';

2. "To devise such alterations and provisions therein as should seem to them requisite in order to render 'the Federal Constitution,' or 'Constitution of the Federal Government,' adequate to 'the exigencies of the Union,' or 'the exigencies of the Government and the preservation of the Union';

3. "To report the result of their deliberations--that is, the 'alterations and provisions' which they should agree to recommend--to Congress and the Legislatures of the several States."

Of course, their action could be only advisory until ratified by the States. The "Articles of Confederation and Perpetual Union," under which the States were already united, provided that no alteration should be made in any of them, "unless such alteration be agreed to in a Congress of the United States, and afterward confirmed by the Legislatures of every State."

The Legislatures of the various States, with the exception of Rhode Island, adopted and proceeded to act upon these suggestions by the appointment of delegates--some of them immediately upon the recommendation of the Annapolis Commissioners in advance of that of the Congress, and the others in the course of a few months after the resolution adopted by Congress. The instructions given to these delegates in all cases conformed to the recommendations which have been quoted, and in one case imposed an additional restriction or limitation. As this is a matter of much importance, in order to a right understanding of what follows, it may be advisable to cite in detail the action of the several States, italicizing such passages as are specially significant of the duties and powers of the delegates to the Convention.

The General Assembly of Virginia, after reciting the recommendation made at Annapolis, enacted: "That seven commissioners be appointed by joint ballot of both Houses of Assembly, who, or any three of them, are hereby authorized, as deputies from this Commonwealth, to meet such deputies as may be appointed and authorized by other States, to assemble in convention at Philadelphia, as above recommended, and to join with them in devising and discussing all such alterations and further provisions as may be necessary to render the Federal Constitution adequate to the exigencies of the Union, and in reporting such an act for that purpose to the United States in Congress, as, when agreed to by them, and duly confirmed by the several States, will effectually provide for the same."

The Council and Assembly of New Jersey issued commissions to their delegates to meet such commissioners as have been, or may be, appointed by the other States of the Union, at the city of Philadelphia, in the Commonwealth of Pennsylvania, on the second Monday in May next, "for the purpose of taking into consideration the state of the Union as to trade and other important objects, and of devising such other provisions as shall appear to be necessary to render the Constitution of the Federal Government adequate to the exigencies thereof."

The act of the General Assembly of Pennsylvania constituted and appointed certain deputies, designated by name, "with powers to meet such deputies as may be appointed and authorized by the other States ... and to join with them in devising, deliberating on, and discussing all such alterations and further provisions as may be necessary to render the Federal Constitution fully adequate to the exigencies of the Union, and in reporting such act or acts for that purpose, to the United States in Congress assembled, as, when agreed to by them and duly confirmed by the several States, will effectually provide for the same."

The General Assembly of North Carolina enacted that commissioners should be appointed by joint ballot of both Houses, "to meet and confer with such deputies as may be appointed by the other States for similar purposes, and with them to discuss and decide upon the most effectual means to remove the defects of our Federal Union, and to procure the enlarged purposes which it was intended to effect; and that they report such an act to the General Assembly of this State, as, when agreed to by them, will effectually provide for the same." (In the case of this State alone nothing is said of a report to Congress. Neither North Carolina nor any other State, however, fails to make mention of the necessity of a submission of any action taken to the several States for ratification.)

The commissions issued to the representatives of South Carolina, by the Governor, refer to an act of the Legislature of that State authorizing their appointment "to meet such deputies or commissioners as may be appointed and authorized by other of the United States," at the time and place designated, and to join with them "in devising and discussing all such alterations, clauses, articles, and provisions, as may be thought necessary to render the Federal Constitution entirely adequate to the actual situation and future good government of the Confederate States," and to "join in reporting such an act to the United States in Congress assembled, as, when approved and agreed to by them, and duly ratified and confirmed by the several States, will effectually provide for the exigencies of the Union." In these commissions the expression, "alterations, clauses, articles, and provisions," clearly indicates the character of the duties which the deputies were expected to discharge.

The General Assembly of Georgia "ordained" the appointment of certain commissioners, specified by name, who were "authorized, as deputies from this State, to meet such deputies as may be appointed and authorized by other States, to assemble in convention at Philadelphia, and to join with them in devising and discussing all such alterations and further provisions as may be necessary to render the Federal Constitution adequate to the exigencies of the Union, and in reporting such an act for that purpose to the United States in Congress assembled, as, when agreed to by them, and duly confirmed by the several States, will effectually provide for the same."

The authority conferred upon their delegates by the Assembly of New York and the General Court of Massachusetts was in each case expressed in the exact words of the advisory resolution of Congress: they were instructed to meet the delegates of the other States "for the sole and express purpose of revising the Articles of Confederation, and reporting to Congress and to the several Legislatures such alterations and provisions therein as shall, when agreed to in Congress, and confirmed by the several States, render the Federal Constitution adequate to the exigencies of the Union."

The General Assembly of Connecticut designated the delegates of that State by name, and empowered them, in conference with the delegates of other States, "to discuss upon such alterations and provisions, agreeable to the general principles of republican government, as they shall think proper to render the Federal Constitution adequate to the exigencies of the Government and the preservation of the Union," and "to report such alterations and provisions as may be agreed to by a majority of the United States in convention, to the Congress of the United States and to the General Assembly of this State."

The General Court of New Hampshire authorized and empowered the deputies of that State, in conference with those of other States, "to discuss and decide upon the most effectual means to remedy the defects of our Federal Union, and to procure and secure the enlarged purposes which it was intended to effect"--language almost identical with that of North Carolina, but, like the other States in general, instructed them to report the result of their deliberations to Congress for the action of that body, and subsequent confirmation "by the several States."

The delegates from Maryland were appointed by the General Assembly of that State, and instructed "to meet such deputies as may be appointed and authorized by any other of the United States, to assemble in convention at Philadelphia, for the purpose of revising the Federal system, and to join with them in considering such alterations and further provisions," etc.--the remainder of their instructions being in the same words as those given to the Georgia delegates.

The instructions given to the deputies of Delaware were substantially in accord with the others--being almost literally identical with those of Pennsylvania--but the following proviso was added: "So, always, and provided, that such alterations or further provisions, or any of them, do not extend to that part of the fifth article of the Confederation of the said States, finally ratified on the first day of March, in the year 1781, which declares that, 'in determining questions in the United States in Congress assembled, each State shall have one vote.'"

Rhode Island, as has already been mentioned, sent no delegates.

From an examination and comparison of the enactments and instructions above quoted, we may derive certain conclusions, so obvious that they need only to be stated:

1. In the first place, it is clear that the delegates to the Convention of 1787 represented, not the people of the United States in mass, as has been most absurdly contended by some political writers, but the people of the several States, as States--just as in the Congress of that period--Delaware, with her sixty thousand inhabitants, having entire equality with Pennsylvania, which had more than four hundred thousand, or Virginia, with her seven hundred and fifty thousand.

2. The object for which they were appointed was not to organize a new Government, but "solely and expressly" to amend the "Federal Constitution" already existing; in other words, "to revise the Articles of Confederation," and to suggest such "alterations" or additional "provisions" as should be deemed necessary to render them "adequate to the exigencies of the Union."

3. It is evident that the term "Federal Constitution," or its equivalent, "Constitution of the Federal Government," was as freely and familiarly applied to the system of government established by the Articles of Confederation--undeniably a league or compact between States expressly retaining their sovereignty and independence--as to that amended system which was substituted for it by the Constitution that superseded those articles.

4. The functions of the delegates to the Convention were, of course, only to devise, deliberate, and discuss. No validity could attach to any action taken, unless and until it should be afterward ratified by the several States. It is evident, also, that what was contemplated was the process provided in the Articles of Confederation for their own amendment--first, a recommendation by the Congress; and, afterward, ratification "by the Legislatures of every State," before the amendment should be obligatory upon any. The departure from this condition, which actually occurred, will presently be noticed.

[Footnote 29: Dr. Worcester.]

[Footnote 30: This definition is very good as far as it goes, but "the form of government" is a phrase which falls short of expressing all that should be comprehended. Perhaps it would be more accurate to say, "which constitute the form, define the powers, and prescribe the functions of government," etc. The words in italics would make the definition more complete.]

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Chapter II

The Convention of 1787.--Diversity of Opinion.--Luther Martin's Account of the Three Parties.--The Question of Representation.--Compromise effected.--Mr. Randolph's Resolutions.--The Word "National" condemned.--Plan of Government framed.--Difficulty with Regard to Ratification, and its Solution.--Provision for Secession from the Union.--Views of Mr. Gerry and Mr. Madison.--False Interpretations.--Close of the Convention.

When the Convention met in Philadelphia, in May, 1787, it soon became evident that the work before it would take a wider range and involve more radical changes in the "Federal Constitution" than had at first been contemplated. Under the Articles of Confederation the General Government was obliged to rely upon the governments of the several States for the execution of its enactments. Except its own officers and employees, and in time of war the Federal army and navy, it could exercise no control upon individual citizens. With regard to the States, no compulsory or coercive measures could be employed to enforce its authority, in case of opposition or indifference to its exercise. This last was a feature of the Confederation which it was not desirable nor possible to change, and no objection was made to it; but it was generally admitted that some machinery should be devised to enable the General Government to exercise its legitimate functions by means of a mandatory authority operating directly upon the individual citizens within the limits of its constitutional powers. The necessity for such provision was undisputed.

Beyond the common ground of a recognition of this necessity there was a wide diversity of opinion among the members of the Convention. Luther Martin, a delegate from Maryland, in an account of its proceedings, afterward given to the Legislature of that State, classifies these differences as constituting three parties in the Convention, which he describes as follows:

"One party, whose object and wish it was to abolish and annihilate all State governments, and to bring forward one General Government over this extensive continent of a monarchical nature, under certain restrictions and limitations. Those who openly avowed this sentiment were, it is true, but few; yet it is equally true that there was a considerable number, who did not openly avow it, who were, by myself and many others of the Convention, considered as being in reality favorers of that sentiment....

"The second party was not for the abolition of the State governments nor for the introduction of a monarchical government under any form; but they wished to establish such a system as could give their own States undue power and influence in the government over the other States.

"A third party was what I considered truly federal and republican. This party was nearly equal in number with the other two, and was composed of the delegates from Connecticut, New York, New Jersey, Delaware, and in part from Maryland; also of some individuals from other representations. This party were for proceeding upon terms of federal equality: they were for taking our present federal system as the basis of their proceedings, and, as far as experience had shown that other powers were necessary to the Federal Government, to give those powers. They considered this the object for which they were sent by their States, and what their States expected from them."

In his account of the second party above described, Mr. Martin refers to those representatives of the larger States who wished to establish a numerical basis of representation in the Congress, instead of the equal representation of the States (whether large or small) which existed under the Articles of Confederation. There was naturally much dissatisfaction on the part of the greater States--Virginia, Pennsylvania, North Carolina, and Massachusetts--whose population at that period exceeded that of all the others combined, but which, in the Congress, constituted less than one third of the voting strength. On the other hand, the smaller States were tenacious of their equality in the Union. Of the very smallest, one, as we have seen, had sent no representatives to the Convention, and the other had instructed her delegates, unconditionally, to insist upon the maintenance of absolute equality in the Congress. This difference gave more trouble than any other question that came before the Convention, and for some time threatened to prove irreconcilable and to hinder any final agreement. It was ultimately settled by a compromise. Provision was made for the representation of the people of the States in one branch of the Federal Legislature (the House of Representatives) in proportion to their numbers; in the other branch (the Senate), for the equal representation of the States as such. The perpetuity of this equality was furthermore guaranteed by a stipulation that no State should ever be deprived of its equal suffrage in the Senate without its own consent.[31] This compromise required no sacrifice of principle on either side, and no provision of the Constitution has in practice proved more entirely satisfactory.

It is not necessary, and would be beyond the scope of this work, to undertake to give a history of the proceedings of the Convention of 1787. That may be obtained from other sources. All that is requisite for the present purpose is to notice a few particulars of special significance or relevancy to the subject of inquiry.

Early in the session of the Convention a series of resolutions was introduced by Mr. Edmund Randolph, of Virginia, embodying a proposed plan of government, which were considered in committee of the whole House, and formed the basis of a protracted discussion. The first of these resolutions, as amended before a vote was taken, was in these words:

"Resolved, That it is the opinion of this committee that a national Government ought to be established, consisting of a supreme legislative, executive, and judiciary."

This was followed by other resolutions--twenty-three in all, as adopted and reported by the committee--in which the word "national" occurred twenty-six times.

The day after the report of the committee was made, Mr. Ellsworth, of Connecticut, moved to strike out the words "national Government" in the resolution above quoted, and to insert the words "Government of the United States," which he said was the proper title. "He wished also the plan to go forth as an amendment of the Articles of Confederation."[32] That is to say, he wished to avoid even the appearance of undertaking to form a new government, instead of reforming the old one, which was the proper object of the Convention. This motion was agreed to without opposition, and, as a consequence, the word "national" was stricken out wherever it occurred, and nowhere makes its appearance in the Constitution finally adopted. The prompt rejection, after introduction, of this word "national," is obviously much more expressive of the intent and purpose of the authors of the Constitution than its mere absence from the Constitution would have been. It is a clear indication that they did not mean to give any countenance to the idea which, "scotched, not killed," has again reared its mischievous crest in these latter days--that the government which they organized was a consolidated nationality, instead of a confederacy of sovereign members.

Continuing their great work of revision and reorganization, the Convention proceeded to construct the framework of a government for the Confederacy, strictly confined to certain specified and limited powers, but complete in all its parts, legislative, executive, and judicial, and provided with the means for discharging all its functions without interfering with the "sovereignty, freedom, and independence" of the constituent States.

All this might have been done without going beyond the limits of their commission "to revise the Articles of Confederation," and to consider and report such "alterations and provisions" as might seem necessary to "render the Federal Constitution adequate to the exigencies of government and the preservation of the Union." A serious difficulty, however, was foreseen. The thirteenth and last of the aforesaid articles had this provision, which has already been referred to: "The Articles of this Confederation shall be inviolably observed by every State, and the union shall be perpetual; nor shall any alteration, at any time hereafter, be made in any of them, unless such alteration be agreed to in a Congress of the United States, and be afterward confirmed by the Legislatures of every State."

It is obvious, from an examination of the records, as has already been shown, that the original idea in calling a Convention was, that their recommendations should take the course prescribed by this article--first, a report to the Congress, and then, if approved by that body, a submission to the various Legislatures for final action. There was no reason to apprehend the non-concurrence of Congress, in which a mere majority would determine the question; but the consent of the Legislatures of "every State" was requisite in order to final ratification, and there was serious reason to fear that this consent could not be obtained. Rhode Island, as we have seen, had declined to send any representatives to the Convention; of the three delegates from New York, two had withdrawn; and other indications of dissatisfaction had appeared. In case of the failure of a single Legislature to ratify, the labors of the Convention would go for naught, under a strict adherence to the letter of the article above cited. The danger of a total frustration of their efforts was imminent.

In this emergency the Convention took the responsibility of transcending the limits of their instructions, and recommending a procedure which was in direct contravention of the letter of the Articles of Confederation. This was the introduction of a provision into the new Constitution, that the ratification of nine States should be sufficient for its establishment among themselves. In order to validate this provision, it was necessary to refer it to authority higher than that of Congress and the State Legislatures--that is, to the People of the States, assembled, by their representatives, in convention. Hence it was provided, by the seventh and last article of the new Constitution, that "the ratification of the Conventions of nine States" should suffice for its establishment "between the States so ratifying the same."

There was another reason, of a more general and perhaps more controlling character, for this reference to conventions for ratification, even if entire unanimity of the State Legislatures could have been expected. Under the American theory of republican government, conventions of the people, duly elected and accredited as such, are invested with the plenary power inherent in the people of an organized and independent community, assembled in mass. In other words, they represent and exercise what is properly the sovereignty of the people. State Legislatures, with restricted powers, do not possess or represent sovereignty. Still less does the Congress of a union or confederacy of States, which is by two degrees removed from the seat of sovereignty. We sometimes read or hear of "delegated sovereignty," "divided sovereignty," with other loose expressions of the same sort; but no such thing as a division or delegation of sovereignty is possible.

In order, therefore, to supersede the restraining article above cited and to give the highest validity to the compact for the delegation of important powers and functions of government to a common agent, an authority above that of the State Legislatures was necessary. Mr. Madison, in the "Federalist,"[33] says: "It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification." This objection would of course have applied with greater force to the proposed Constitution, which provided for additional grants of power from the States, and the conferring of larger and more varied powers upon a General Government, which was to act upon individuals instead of States, if the question of its confirmation had been submitted merely to the several State Legislatures. Hence the obvious propriety of referring it to the respective people of the States in their sovereign capacity, as provided in the final article of the Constitution.

In this article provision was deliberately made for the secession (if necessary) of a part of the States from a union which, when formed, had been declared "perpetual," and its terms and articles to be "inviolably observed by every State."

Opposition was made to the provision on this very ground--that it was virtually a dissolution of the Union, and that it would furnish a precedent for future secessions. Mr. Gerry, a distinguished member from Massachusetts--afterward Vice-President of the United States--said, "If nine out of thirteen (States) can dissolve the compact, six out of nine will be just as able to dissolve the future one hereafter."

Mr. Madison, who was one of the leading members of the Convention, advocating afterward, in the "Federalist," the adoption of the new Constitution, asks the question, "On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it?" He answers this question "by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed." He proceeds, however, to give other grounds of justification:

"It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach committed by either of the parties absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the Federal pact, will not the complaining parties find it a difficult task to answer the multiplied and important infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate."

Mr. Madison's idea of the propriety of veiling any statement of the right of secession until the occasion arises for its exercise, whether right or wrong in itself, is eminently suggestive as explanatory of the caution exhibited by other statesmen of that period, as well as himself, with regard to that "delicate truth."

The only possible alternative to the view here taken of the seventh article of the Constitution, as a provision for the secession of any nine States, which might think proper to avail themselves of it, from union with such as should refuse to do so, and the formation of an amended or "more perfect union" with one another, is to regard it as a provision for the continuance of the old Union, or Confederation, under altered conditions, by the majority which should accede to them, with a recognition of the right of the recusant minority to withdraw, secede, or stand aloof. The idea of compelling any State or States to enter into or to continue in union with the others by coercion, is as absolutely excluded under the one supposition as under the other--with reference to one State or a minority of States, as well as with regard to a majority. The article declares that "the ratification of the Conventions of nine States shall be sufficient for the establishment of this Constitution"--not between all, but--"between the States so ratifying the same." It is submitted whether a fuller justification of this right of the nine States to form a new Government is not found in the fact of the sovereignty in each of them, making them "a law unto themselves," and therefore the final judge of what the necessities of each community demand.

Here--although, perhaps, in advance of its proper place in the argument--the attention of the reader may be directed to the refutation, afforded by this article of the Constitution, of that astonishing fiction, which has been put forward by some distinguished writers of later date, that the Constitution was established by the people of the United States "in the aggregate." If such had been the case, the will of a majority, duly ascertained and expressed, would have been binding upon the minority. No such idea existed in its formation. It was not even established by the States in the aggregate, nor was it proposed that it should be. It was submitted for the acceptance of each separately, the time and place at their own option, so that the dates of ratification did extend from December 7, 1787, to May 29, 1790. The long period required for these ratifications makes manifest the absurdity of the assertion, that it was a decision by the votes of one people, or one community, in which a majority of the votes cast determined the result.

We have seen that the delegates to the Convention of 1787 were chosen by the several States, as States--it is hardly necessary to add that they voted in the Convention, as in the Federal Congress, by States--each State casting one vote. We have seen, also, that they were sent for the "sole and express purpose" of revising the Articles of Confederation and devising means for rendering the Federal Constitution, "adequate to the exigencies of government and the preservation of the Union"; that the terms "Union," "United States," "Federal Constitution;" and "Constitution of the Federal Government," were applied to the old Confederation in precisely the same sense in which they are used under the new; that the proposition to constitute a "national" Government was distinctly rejected by the Convention; that the right of any State, or States, to withdraw from union with the others was practically exemplified, and that the idea of coercion of a State, or compulsory measures, was distinctly excluded under any construction that can be put upon the action of the Convention.

To the original copy of the Constitution, as set forth by its framers for the consideration and final action of the people of the States, was attached the following words:

"Done in Convention, by the unanimous consent of the States present, the seventeenth day of September, in the year of our Lord one thousand seven hundred and eighty-seven, and of the Independence of the United States of America, the twelfth. In witness whereof, we have hereunto subscribed our names."

[Followed by the signatures of "George Washington, President, and deputy from Virginia," and the other delegates who signed it.]

This attachment to the instrument--a mere attestation of its authenticity, and of the fact that it had the unanimous consent of all the States then present by their deputies--not of all the deputies, for some of them refused to sign it--has been strangely construed by some commentators as if it were a part of the Constitution, and implied that it was "done," in the sense of completion of the work.[34]

But the work was not done when the Convention closed its labors and adjourned. It was scarcely begun. There was no validity or binding force whatever in what had been already "done." It was still to be submitted to the States for approval or rejection. Even if a majority of eight out of thirteen States had ratified it, the refusal of the ninth would have rendered it null and void. Mr. Madison, who was one of the most distinguished of its authors and signers, writing after it was completed and signed, but before it was ratified, said: "It is time now to recollect that the powers [of the Convention] were merely advisory and recommendatory; that they were so meant by the States, and so understood by the Convention; and that the latter have accordingly planned and proposed a Constitution, which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed."--("Federalist," No. XL.)

The mode and terms in which this approval was expressed will be considered in the next chapter.

[Footnote 31: Constitution, Article V.]

[Footnote 32: See Elliott's "Debates," vol. v, p. 214. This reference is taken from "The Republic of Republics," Part III, chapter vii, p. 217. This learned, exhaustive, and admirable work, which contains a wealth of historical and political learning, will be freely used, by kind consent of the author, without the obligation of a repetition of special acknowledgment in every case. A like liberty will be taken with the late Dr. Bledsoe's masterly treatise on the right of secession, published in 1866, under the title, "Is Davis a Traitor? or, Was Secession a Constitutional Right?"]

[Footnote 33: No. xliii.]

[Footnote 34: See "Republic of Republics," Part II, chapters xiii and xiv.]

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Chapter III

Ratification of the Constitution by the States.--Organization of the New Government.--Accession of North Carolina and Rhode Island.--Correspondence between General Washington and the Governor of Rhode Island.

The amended system of union, or confederation (the terms are employed indiscriminately and interchangeably by the statesmen of that period), devised by the Convention of 1787, and embodied, as we have seen, in the Constitution which they framed and have set forth, was now to be considered and acted on by the people of the several States. This they did in the highest and most majestic form in which the sanction of organized communities could be given or withheld--not through ambassadors, or Legislatures, or deputies with limited powers, but through conventions of delegates chosen expressly for the purpose and clothed with the plenary authority of sovereign people. The action of these conventions was deliberate, cautious, and careful. There was much debate, and no little opposition to be conciliated. Eleven States, however, ratified and adopted the new Constitution within the twelve months immediately following its submission to them. Two of them positively rejected it, and, although they afterward acceded to it, remained outside of the Union in the exercise of their sovereign right, which nobody then denied--North Carolina for nine months, Rhode Island for nearly fifteen, after the new Government was organized and went into operation. In several of the other States the ratification was effected only by small majorities.

The terms in which this action was expressed by the several States and the declarations with which it was accompanied by some of them are worthy of attention.

Delaware was the first to act. Her Convention met on December 3, 1787, and ratified the Constitution on the 7th. The readiness of this least in population, and next to the least in territorial extent, of all the States, to accept that instrument, is a very significant fact when we remember the jealous care with which she had guarded against any infringement of her sovereign Statehood. Delaware alone had given special instructions to her deputies in the Convention not to consent to any sacrifice of the principle of equal representation in Congress. The promptness and unanimity of her people in adopting the new Constitution prove very clearly, not only that they were satisfied with the preservation of that principle in the Federal Senate, but that they did not understand the Constitution, in any of its features, as compromising the "sovereignty, freedom, and independence" which she had so especially cherished. The ratification of their Convention is expressed in these words:

"We, the deputies of the people of the Delaware State, in convention met, having taken into our serious consideration the Federal Constitution proposed and agreed upon by the deputies of the United States at a General Convention held at the city of Philadelphia on the 17th day of September, A. D. 1787, have approved of, assented to, and ratified and confirmed, and by these presents do, in virtue of the powers and authority to us given for that purpose, for and in behalf of ourselves and our constituents, fully, freely, and entirely, approve of, assent to, ratify, and confirm the said Constitution.

"Done in convention at Dover, December 7, 1787."

This, and twelve other like acts, gave to the Constitution "all the life and validity it ever had, or could have, as to the thirteen united or associated States."

Pennsylvania acted next (December 12, 1787), the ratification not being finally accomplished without strong opposition, on grounds which will be referred to hereafter. In announcing its decision, the Convention of this State began as follows:

"In the name of the people of Pennsylvania. Be it known unto all men that we, the delegates of the people of the Commonwealth of Pennsylvania, in General Convention assembled," etc., etc., concluding with these words: "By these presents, do, in the name and by the authority of the same people, and for ourselves, assent to and ratify the foregoing Constitution for the United States of America."

In New Jersey the ratification, which took place on the 18th of December, was unanimous. This is no less significant and instructive than the unanimity of Delaware, from the fact that the New Jersey delegation, in the Convention that framed the Constitution, had taken the lead in behalf of the federal, or State-rights, idea, in opposition to that of nationalism, or consolidation. William Patterson, a distinguished citizen (afterward Governor) of New Jersey, had introduced into that Convention what was known as "the Jersey plan," embodying these State-rights principles, as distinguished from the various "national" plans presented. In defending them, he had said, after calling for the reading of the credentials of delegates:

"Can we, on this ground, form a national Government? I fancy not. Our commissions give a complexion to the business; and can we suppose that, when we exceed the bounds of our duty, the people will approve our proceedings?

"We are met here as the deputies of thirteen independent, sovereign States, for federal purposes. Can we consolidate their sovereignty and form one nation, and annihilate the sovereignties of our States, who have sent us here for other purposes?"

Again, on a subsequent day, after stating that he was not there to pursue his own sentiments of government, but of those who had sent him, he had asked:

"Can we, as representatives of independent States, annihilate the essential powers of independency? Are not the votes of this Convention taken on every question under the idea of independency?"

The fact that this State, which, through her representatives, had taken so conspicuous a part in the maintenance of the principle of State sovereignty, ratified the Constitution with such readiness and unanimity, is conclusive proof that, in her opinion, that principle was not compromised thereby. The conclusion of her ordinance of ratification is in these words:

"Now be it known that we, the delegates of the State of New Jersey, chosen by the people thereof for the purpose aforesaid, having maturely deliberated on and considered the aforesaid proposed Constitution, do hereby, for and on behalf of the people of the said State of New Jersey, agree to, ratify, and confirm the same, and every part thereof.

"Done in convention, by the unanimous consent of the members present, this 18th day of December, A. D. 1787."

Georgia next, and also unanimously, on January 2, 1788, declared, through "the delegates of the State of Georgia, in convention met, pursuant to the provisions of the [act of the] Legislature aforesaid ... in virtue of the powers and authority given us [them] by the people of the said State, for that purpose," that they did "fully and entirely assent to, ratify, and adopt the said Constitution."

Connecticut (on the 9th of January) declares her assent with equal distinctness of assertion as to the source of the authority: "In the name of the people of the State of Connecticut, we, the delegates of the people of the said State, in General Convention assembled, pursuant to an act of the Legislature in October last ... do assent to, ratify, and adopt the Constitution reported by the Convention of delegates in Philadelphia."

In Massachusetts there was a sharp contest. The people of that State were then--as for a long time afterward--exceedingly tenacious of their State independence and sovereignty. The proposed Constitution was subjected to a close, critical, and rigorous examination with reference to its bearing upon this very point. The Convention was a large one, and some of its leading members were very distrustful of the instrument under their consideration. It was ultimately adopted by a very close vote (187 to 168), and then only as accompanied by certain proposed amendments, the object of which was to guard more expressly against any sacrifice or compromise of State sovereignty, and under an assurance, given by the advocates of the Constitution, of the certainty that those amendments would be adopted. The most strenuously urged of these was that ultimately adopted (in substance) as the tenth amendment to the Constitution, which was intended to take the place of the second Article of Confederation, as an emphatic assertion of the continued freedom, sovereignty, and independence of the States. This will be considered more particularly hereafter.

In terms substantially identical with those employed by the other States, Massachusetts thus announced her ratification:

"In convention of the delegates of the people of the Commonwealth of Massachusetts, 1788. The Convention having impartially discussed and fully considered the Constitution for the United States of America, reported [etc.] ... do, in the name and in behalf of the people of the Commonwealth of Massachusetts, assent to and ratify the said Constitution for the United States of America."

This was accomplished on February 7, 1788.

Maryland followed on the 28th of April, and South Carolina on the 23d of May, in equivalent expressions, the ratification of the former being made by "the delegates of the people of Maryland," speaking, as they declared, for ourselves, and in the name and on the behalf of the people of this State; that of the latter, "in convention of the people of the State of South Carolina, by their representatives, ... in the name and behalf of the people of this State."

But South Carolina, like Massachusetts, demanded certain amendments, and for greater assurance accompanied her ordinance of ratification with the following distinct assertion of the principle afterward embodied in the tenth amendment:

"This Convention doth also declare that no section or paragraph of the said 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."

"The delegates of the people of the State of New Hampshire," in convention, on the 21st of June, "in the name and behalf of the people of the State of New Hampshire," declared their approval and adoption of the Constitution. In this State, also, the opposition was formidable (the final vote being 57 to 46), and, as in South Carolina, it was "explicitly declared that all powers not expressly and particularly delegated by the aforesaid Constitution are reserved to the several States, to be by them exercised."

The debates in the Virginia Convention were long and animated. Some of the most eminent and most gifted men of that period took part in them, and they have ever since been referred to for the exposition which they afford of the interpretation of the Constitution by its authors and their contemporaries. Among the members were Madison, Mason, and Randolph, who had also been members of the Convention at Philadelphia. Mr. Madison was one of the most earnest advocates of the new Constitution, while Mr. Mason was as warmly opposed to its adoption; so also was Patrick Henry, the celebrated orator. It was assailed with great vehemence at every vulnerable or doubtful point, and was finally ratified June 26, 1788, by a vote of 89 to 79--a majority of only ten.

This ratification was expressed in the same terms employed by other States, by "the delegates of the people of Virginia ... in the name and in behalf of the people of Virginia." In so doing, however, like Massachusetts, New Hampshire, and South Carolina, Virginia demanded certain amendments as a more explicit guarantee against consolidation, and accompanied the demand with the following declaration:

"That the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them, whenever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will," etc., etc.

Whether, in speaking of a possible resumption of powers by "the people of the United States," the Convention had in mind the action of such a people in the aggregate--political community which did not exist, and of which they, could hardly have entertained even an ideal conception--or of the people of Virginia, for whom they were speaking, and of the other United States then taking similar action--is a question which scarcely admits of argument, but which will be more fully considered in the proper place.

New York, the eleventh State to signify her assent, did so on July 26, 1788, after an arduous and protracted discussion, and then by a majority of but three votes--30 to 27. Even this small majority was secured only by the recommendation of certain material amendments, the adoption of which by the other States it was at first proposed to make a condition precedent to the validity of the ratification. This idea was abandoned after a correspondence between Mr. Hamilton and Mr. Madison, and, instead of conditional ratification, New York provided for the resumption of her grants; but the amendments were put forth with a circular letter to the other States, in which it was declared that "nothing but the fullest confidence of obtaining a revision" of the objectionable features of the Constitution, "and an invincible reluctance to separating from our sister States, could have prevailed upon a sufficient number to ratify it without stipulating for previous amendments."

The ratification was expressed in the usual terms, as made "by the delegates of the people of the State of New York ... in the name and in behalf of the people" of the said State. Accompanying it was a declaration of the principles in which the assent of New York was conceded, one paragraph of which runs as follows:

"That the powers of government may be reassumed by the people, whensoever it shall 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 for greater caution."

The acceptance of these eleven States having been signified to the Congress, provision was made for putting the new Constitution in operation. This was effected on March 4, 1789, when the Government was organized, with George Washington as President, and John Adams, Vice-President; the Senators and Representatives elected by the States which had acceded to the Constitution, organizing themselves as a Congress.

Meantime, two States were standing, as we have seen, unquestioned and unmolested, in an attitude of absolute independence. The Convention of North Carolina, on August 2, 1788, had rejected the proposed Constitution, or, more properly speaking, had withheld her ratification until action could be taken upon the subject-matter of the following resolution adopted by her Convention:

"Resolved, That a declaration of rights, asserting and securing from encroachment the great principles of civil and religious liberty, and the unalienable rights of the people, together with amendments to the most ambiguous and exceptionable parts of the said Constitution of government, ought to be laid before Congress and the Convention of the States that shall or may be called for the purpose of amending the said Constitution, for their consideration, previous to the ratification of the Constitution aforesaid on the part of the State of North Carolina."

More than a year afterward, when the newly organized Government had been in operation for nearly nine months, and when--although no convention of the States had been called to revise the Constitution--North Carolina had good reason to feel assured that the most important provisions of her proposed amendments and "declaration of rights" would be adopted, she acceded to the amended compact. On November 21, 1789, her Convention agreed, "in behalf of the freemen, citizens, and inhabitants of the State of North Carolina," to "adopt and ratify" the Constitution.

In Rhode Island the proposed Constitution was at first submitted to a direct vote of the people, who rejected it by an overwhelming majority. Subsequently--that is, on May 29, 1790, when the reorganized Government had been in operation for nearly fifteen months, and when it had become reasonably certain that the amendments thought necessary would be adopted--a convention of the people of Rhode Island acceded to the new Union, and ratified the Constitution, though even then by a majority of only two votes in sixty-six--34 to 32. The ratification was expressed in substantially the same language as that which has now been so repeatedly cited:

"We, the delegates of the people of the State of Rhode Island and Providence Plantations, duly elected and met in convention, ... in the name and behalf of the people of Rhode Island and Providence Plantations, do, by these presents, assent to and ratify the said Constitution."

It is particularly to be noted that, during the intervals between the organization of the Federal Government under the new Constitution and the ratification of that Constitution by, North Carolina and Rhode Island, respectively, those States were absolutely independent and unconnected with any other political community, unless they be considered as still representing the "United States of America," which by the Articles of Confederation had been declared a "perpetual union." The other States had seceded from the former union--not in a body, but separately, each for itself--and had formed a new association, leaving these two States in the attitude of foreign though friendly powers. There was no claim of any right to control their action, as if they had been mere geographical or political divisions of one great consolidated community or "nation." Their accession to the Union was desired, but their freedom of choice in the matter was never questioned. And then it is to be noted, on their part, that, like the house of Judah, they refrained from any attempt to force the seceding sisters to return.

As illustrative of the relations existing during this period between the United States and Rhode Island, it may not be uninstructive to refer to a letter sent by the government of the latter to the President and Congress, and transmitted by the President to the Senate, with the following note:

"United States, September 26, 1789.

"Gentlemen of the Senate: Having yesterday received a letter written in this month by the Governor of Rhode Island, at the request and in behalf of the General Assembly of that State, addressed to the President, the Senate, and the House of Representatives of the eleven United States of America in Congress assembled, I take the earliest opportunity of laying a copy of it before you."

(Signed) "GEORGE WASHINGTON."

Some extracts from the communication referred to are annexed:

"State of Rhode Island and Providence Plantations, In General Assembly, September Session, 1789.

"To the President, the Senate, and the House of Representatives of the eleven United States of America in Congress assembled:

"The critical situation in which the people of this State are placed engages us to make these assurances, on their behalf, of their attachment and friendship to their sister States, and of their disposition to cultivate mutual harmony and friendly intercourse. They know themselves to be a handful, comparatively viewed, and, although they now stand as it were alone, they have not separated themselves or departed from the principles of that Confederation, which was formed by the sister States in their struggle for freedom and in the hour of danger....

"Our not having acceded to or adopted the new system of government formed and adopted by most of our sister States, we doubt not, has given uneasiness to them. That we have not seen our way clear to it, consistently with our idea of the principles upon which we all embarked together, has also given pain to us. We have not doubted that we might thereby avoid present difficulties, but we have apprehended future mischief....

"Can it be thought strange that, with these impressions, they [the people of this State] should wait to see the proposed system organized and in operation?--to see what further checks and securities would be agreed to and established by way of amendments, before they could adopt it as a Constitution of government for themselves and their posterity?...

"We are induced to hope that we shall not be altogether considered as foreigners having no particular affinity or connection with the United States; but that trade and commerce, upon which the prosperity of this State much depends, will be preserved as free and open between this State and the United States, as our different situations at present can possibly admit....

"We feel ourselves attached by the strongest ties of friendship, kindred, and interest, to our sister States; and we can not, without the greatest reluctance, look to any other quarter for those advantages of commercial intercourse which we conceive to be more natural and reciprocal between them and us.

"I am, at the request and in behalf of the General Assembly, your most obedient, humble servant."

(Signed) "John Collins, Governor.

"His Excellency, the President of the United States."

[American State Papers, Vol. I, Miscellaneous.]

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Chapter IV

The Constitution not adopted by one People "in the Aggregate."--A Great Fallacy exposed.--Mistake of Judge Story.--Colonial Relations.--The United Colonies of New England.--Other Associations.--Independence of Communities traced from Germany to Great Britain, and from Great Britain to America.--Mr. Everett's "Provincial People."--Origin and Continuance of the Title "United States."--No such Political Community as the "People of the United States."

The historical retrospect of the last three chapters and the extracts from the records of a generation now departed have been presented as necessary to a right understanding of the nature and principles of the compact of 1787, on which depended the questions at issue in the secession of 1861 and the contest that ensued between the States.

We have seen that the united colonies, when they declared their independence, formed a league or alliance with one another as "United States." This title antedated the adoption of the Articles of Confederation. It was assumed immediately after the Declaration of Independence, and was continued under the Articles of Confederation; the first of which declared that "the style of this confederacy shall be 'The United States of America'"; and this style was retained--without question--in the formation of the present Constitution. The name was not adopted as antithetical to, or distinctive from, "confederate," as some seem to have imagined. If it has any significance now, it must have had the same under the Articles of Confederation, or even before they were adopted.

It has been fully shown that the States which thus became and continued to be "united," whatever form their union assumed, acted and continued to act as distinct and sovereign political communities. The monstrous fiction that they acted as one people "in their aggregate capacity" has not an atom of fact to serve as a basis.

To go back to the very beginning, the British colonies never constituted one people. Judge Story, in his "Commentaries" on the Constitution, seems to imply the contrary, though he shrinks from a direct assertion of it, and clouds the subject by a confusion of terms. He says: "Now, it is apparent that none of the colonies before the Revolution were, in the most large and general sense, independent or sovereign communities. They were all originally settled under and subjected to the British Crown." And then he proceeds to show that they were, in their colonial condition, not sovereign--a proposition which nobody disputed. As colonies, they had no claim, and made no pretension, to sovereignty. They were subject to the British Crown, unless, like the Plymouth colony, "a law unto themselves," but they were independent of each other--the only point which has any bearing upon their subsequent relations. There was no other bond between them than that of their common allegiance to the Government of the mother-country. As an illustration of this may be cited the historical fact that, when John Stark, of Bennington memory, was before the Revolution engaged in a hunting expedition in the Indian country, he was captured by the savages and brought to Albany, in the colony of New York, for a ransom; but, inasmuch as he belonged to New Hampshire, the government of New York took no action for his release. There was not even enough community of feeling to induce individual citizens to provide money for the purpose.

There were, however, local and partial confederacies among the New England colonies, long before the Declaration of Independence. As early as the year 1643 a Congress had been organized of delegates from Massachusetts, Plymouth, New Haven, and Connecticut, under the style of "The United Colonies of New England." The objects of this confederacy, according to Mr. Bancroft, were "protection against the encroachments of the Dutch and French, security against the tribes of savages, the liberties of the gospel in purity and in peace."[35] The general affairs of the company were intrusted to commissions, two from each colony; but the same historian tells us that "to each its respective local jurisdiction was carefully reserved," and he refers to this as evidence that the germ-principle of State-rights was even then in existence. "Thus remarkable for unmixed simplicity" (he proceeds) "was the form of the first confederated government in America.... There was no president, except as a moderator of its meetings, and the larger State [sic], Massachusetts, superior to all the rest in territory, wealth, and population, had no greater number of votes than New Haven. But the commissioners were in reality little more than a deliberative body; they possessed no executive power, and, while they could decree a war and a levy of troops, it remained for the States to carry their votes into effect."[36]

This confederacy continued in existence for nearly fifty years. Between that period and the year 1774, when the first Continental Congress met in Philadelphia, several other temporary and provisional associations of colonies had been formed, and the people had been taught the advantages of union for a common purpose; but they had never abandoned or compromised the great principle of community independence. That form of self-government, generated in the German forests before the days of the Cæsars, had given to that rude people a self-reliance and patriotism which first checked the flight of the Roman eagles, which elsewhere had been the emblem of their dominion over the known world. This principle--the great preserver of all communal freedom and of mutual harmony--was transplanted by the Saxons into England, and there sustained those personal rights which, after the fall of the Heptarchy, were almost obliterated by the encroachments of Norman despotism; but, having the strength and perpetuity of truth and right, were reasserted by the mailed hands of the barons at Runnymede for their own benefit and that of their posterity. Englishmen, the early settlers, brought this idea to the wilds of America, and it found expression in many forms among the infant colonies.

Mr. Edward Everett, in his Fourth-of-July address, delivered in New York in 1861, following the lead of Judge Story, and with even less caution, boldly declares that, "before their independence of England was asserted, they [the colonies] constituted a provincial people." To sustain this position--utterly contrary to all history as it is--he is unable to adduce any valid American authority, but relies almost exclusively upon loose expressions employed in debate in the British Parliament about the period of the American Revolution--such as "that people," "that loyal and respectable people," "this enlightened and spirited people," etc., etc. The speakers who made use of this colloquial phraseology concerning the inhabitants of a distant continent, in the freedom of extemporaneous debate, were not framing their ideas with the exactitude of a didactic treatise, and could little have foreseen the extraordinary use to be made of their expressions nearly a century afterward, in sustaining a theory contradictory to history as well as to common sense. It is as if the familiar expressions often employed in our own time, such as "the people of Africa," or "the people of South America," should be cited, by some ingenious theorist of a future generation, as evidence that the subjects of the Khedive and those of the King of Dahomey were but "one people," or that the Peruvians and the Patagonians belonged to the same political community.

Mr. Everett, it is true, quotes two expressions of the Continental Congress to sustain his remarkable proposition that the colonies were "a people." One of these is found in a letter addressed by the Congress to General Gage in October, 1774, remonstrating against the erection of fortifications in Boston, in which they say, "We entreat your Excellency to consider what a tendency this conduct must have to irritate and force a free people, hitherto well disposed to peaceable measures, into hostilities." From this expression Mr. Everett argues that the Congress considered themselves the representatives of "a people." But, by reference to the proceedings of the Congress, he might readily have ascertained that the letter to General Gage was written in behalf of "the town of Boston and Province of Massachusetts Bay," the people of which were "considered by all America as suffering in the common cause for their noble and spirited opposition to oppressive acts of Parliament." The avowed object was "to entreat his Excellency, from the assurance we have of the peaceable disposition of the inhabitants of the town of Boston and of the Province of Massachusetts Bay, to discontinue his fortifications."[37] These were the "people" referred to by the Congress; and the children of the Pilgrims, who occupied at that period the town of Boston and Province of Massachusetts Bay, would have been not a little astonished to be reckoned as "one people," in any other respect than that of the "common cause," with the Roman Catholics of Maryland, the Episcopalians of Virginia, the Quakers of Pennsylvania, or the Baptists of Rhode Island.

The other citation of Mr. Everett is from the first sentence of the Declaration of Independence: "When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another," etc., etc. This, he says, characterizes "the good people" of the colonies as "one people."

Plainly, it does no such thing. The misconception is so palpable as scarcely to admit of serious answer. The Declaration of Independence opens with a general proposition. "One people" is equivalent to saying "any people." The use of the correlatives "one" and "another" was the simple and natural way of stating this general proposition. "One people" applies, and was obviously intended to apply, to all cases of the same category--to that of New Hampshire, or Delaware, or South Carolina, or of any other people existing or to exist, and whether acting separately or in concert. It applies to any case, and all cases, of dissolution of political bands, as well as to the case of the British colonies. It does not, either directly or by implication, assert their unification, and has no bearing whatever upon the question.

When the colonies united in sending representatives to a Congress in Philadelphia, there was no purpose--no suggestion of a purpose--to merge their separate individuality in one consolidated mass. No such idea existed, or with their known opinions could have existed. They did not assume to become a united colony or province, but styled themselves "united colonies"--colonies united for purposes of mutual counsel and defense, as the New England colonies had been united more than a hundred years before. It was as "United States"--not as a state, or united people--that these colonies--still distinct and politically independent of each other--asserted and achieved their independence of the mother-country. As "United States" they adopted the Articles of Confederation, in which the separate sovereignty, freedom, and independence of each was distinctly asserted. They were "united States" when Great Britain acknowledged the absolute freedom and independence of each, distinctly and separately recognized by name. France and Spain were parties to the same treaty, and the French and Spanish idioms still express and perpetuate, more exactly than the English, the true idea intended to be embodied in the title--les États Unis, or los Estados Unidos--the States united.

It was without any change of title--still as "United States"--without any sacrifice of individuality--without any compromise of sovereignty--that the same parties entered into a new and amended compact with one another under the present Constitution. Larger and more varied powers were conferred upon the common Government for the purpose of insuring "a more perfect union"--not for that of destroying or impairing the integrity of the contracting members.

The point which now specially concerns the argument is the historical fact that, in all these changes of circumstances and of government, there has never been one single instance of action by the "people of the United States in the aggregate," or as one body. Before the era of independence, whatever was done by the people of the colonies was done by the people of each colony separately and independently of each other, although in union by their delegates for certain specified purposes. Since the assertion of their independence, the people of the United States have never acted otherwise than as the people of each State, severally and separately. The Articles of Confederation were established and ratified by the several States, either through conventions of their people or through the State Legislatures. The Constitution which superseded those articles was framed, as we have seen, by delegates chosen and empowered by the several States, and was ratified by conventions of the people of the same States--all acting in entire independence of one another. This ratification alone gave it force and validity. Without the approval and ratification of the people of the States, it would have been, as Mr. Madison expressed it, "of no more consequence than the paper on which it was written." It was never submitted to "the people of the United States in the aggregate," or as a people. Indeed, no such political community as the people of the United States in the aggregate exists at this day or ever did exist. Senators in Congress confessedly represent the States as equal units. The House of Representatives is not a body of representatives of "the people of the United States," as often erroneously asserted; but the Constitution, in the second section of its first article, expressly declares that it "shall be composed of members chosen by the people of the several States."

Nor is it true that the President and Vice-President are elected, as it is sometimes vaguely stated, by vote of the "whole people" of the Union. Their election is even more unlike what such a vote would be than that of the representatives, who in numbers at least represent the strength of their respective States. In the election of President and Vice-President the Constitution (Article II) prescribes that "each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors" for the purpose of choosing a President and Vice-President. The number of these electors is based partly upon the equal sovereignty, partly upon the unequal population of the respective States.

It is, then, absolutely true that there has never been any such thing as a vote of "the people of the United States in the aggregate"; no such people is recognized by the Constitution; and no such political community has ever existed. It is equally true that no officer or department of the General Government formed by the Constitution derives authority from a majority of the whole people of the United States, or has ever been chosen by such majority. As little as any other is the United States Government a government of a majority of the mass.

[Footnote 35: Bancroft's "History of the United States," vol. i, chap. ix.]

[Footnote 36: Bancroft's "History of the United States," vol. i, chap. ix.]

[Footnote 37: "American Archives," fourth series, vol. i, p. 908.]

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V. The Preamble to the Constitution.--"We, the People."

The preamble to the Constitution proposed by the Convention of 1787 is in these words:

"We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."

The phraseology of this preamble has been generally regarded as the stronghold of the advocates of consolidation. It has been interpreted as meaning that "we, the people of the United States," as a collective body, or as a "nation," in our aggregate capacity, had "ordained and established" the Constitution over the States.

This interpretation constituted, in the beginning, the most serious difficulty in the way of the ratification of the Constitution. It was probably this to which that sturdy patriot, Samuel Adams, of Massachusetts, alluded, when he wrote to Richard Henry Lee, "I stumble at the threshold." Patrick Henry, in the Virginia Convention, on the third day of the session, and in the very opening of the debate, attacked it vehemently. He said, speaking of the system of government set forth in the proposed Constitution:

"That this is a consolidated government is demonstrably clear; and the danger of such a government is, to my mind, very striking. I have the highest veneration for those gentlemen [its authors]; but, sir, give me leave to demand, What right had they to say, We, the people? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, Who authorized them to speak the language of 'We, the people,' instead of We, the States? States are the characteristics and the soul of a confederation. If the States be not the agents of this compact, it must be one great consolidated national government of the people of all the States."[38]

Again, on the next day, with reference to the same subject, he said: "When I asked that question, I thought the meaning of my interrogation was obvious. The fate of this question and of America may depend on this. Have they said, We, the States? Have they made a proposal of a compact between States? If they had, this would be a confederation: it is otherwise most clearly a consolidated government. The question turns, sir, on that poor little thing--the expression, 'We, the people,' instead of the States of America."[39]

The same difficulty arose in other minds and in other conventions.

The scruples of Mr. Adams were removed by the explanations of others, and by the assurance of the adoption of the amendments thought necessary--especially of that declaratory safeguard afterward embodied in the tenth amendment--to be referred to hereafter.

Mr. Henry's objection was thus answered by Mr. Madison:

"Who are parties to it [the Constitution]? The people--but not the people as composing one great body; but the people as composing thirteen sovereignties: were it, as the gentleman [Mr. Henry] asserts, a consolidated government, the assent of a majority of the people would be sufficient for its establishment, and as a majority have adopted it already, the remaining States would be bound by the act of the majority, even if they unanimously reprobated it: were it such a government as is suggested, it would be now binding on the people of this State, without having had the privilege of deliberating upon it; but, sir, no State is bound by it, as it is, without its own consent. Should all the States adopt it, it will be then a government established by the thirteen States of America, not through the intervention of the Legislatures, but by the people at large. In this particular respect the distinction between the existing and proposed governments is very material. The existing system has been derived from the dependent, derivative authority of the Legislatures of the States, whereas this is derived from the superior power of the people."[40]

It must be remembered that this was spoken by one of the leading members of the Convention which formed the Constitution, within a few months after that instrument was drawn up. Mr. Madison's hearers could readily appreciate his clear answer to the objection made. The "people" intended were those of the respective States--the only organized communities of people exercising sovereign powers of government; and the idea intended was the ratification and "establishment" of the Constitution by direct act of the people in their conventions, instead of by act of their Legislatures, as in the adoption of the Articles of Confederation. The explanation seems to have been as satisfactory as it was simple and intelligible. Mr. Henry, although he fought to the last against the ratification of the Constitution, did not again bring forward this objection, for the reason, no doubt, that it had been fully answered. Indeed, we hear no more of the interpretation which suggested it, from that period, for nearly half a century, when it was revived, and has since been employed, to sustain that theory of a "great consolidated national government" which Mr. Madison so distinctly repudiated.

But we have access to sources of information, not then available, which make the intent and meaning of the Constitution still plainer. When Mr. Henry made his objection, and Mr. Madison answered it, the journal of the Philadelphia Convention had not been published. That body had sat with closed doors, and among its rules had been the following:

"That no copy be taken of any entry on the journal during the sitting of the House, without the leave of the House.

"That members only be permitted to inspect the journal.

"That nothing spoken in the House be printed, or otherwise published or communicated, without leave."[41]

We can understand, by reference to these rules, how Mr. Madison should have felt precluded from making allusion to anything that had occurred during the proceedings of the Convention. But the secrecy then covering those proceedings has long since been removed. The manuscript journal, which was intrusted to the keeping of General Washington, President of the Convention, was deposited by him, nine years afterward, among the archives of the State Department. It has since been published, and we can trace for ourselves the origin, and ascertain the exact significance, of that expression, "We, the people," on which Patrick Henry thought the fate of America might depend, and which has been so grossly perverted in later years from its true intent.

The original language of the preamble, reported to the Convention by a committee of five appointed to prepare the Constitution, as we find it in the proceedings of August 6, 1787, was as follows:

"We, the people of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, do ordain, declare, and establish, the following Constitution for the government of ourselves and our posterity."

There can be no question here what was meant: it was "the people of the States," designated by name, that were to "ordain, declare, and establish" the compact of union for themselves and their posterity. There is no ambiguity nor uncertainty in the language; nor was there any difference in the Convention as to the use of it. The preamble, as perfected, was submitted to vote on the next day, and, as the journal informs us, "it passed unanimously in the affirmative."

There was no subsequent change of opinion on the subject. The reason for the modification afterward made in the language is obvious. It was found that unanimous ratification of all the States could not be expected, and it was determined, as we have already seen, that the consent of nine States should suffice for the establishment of the new compact "between the States so ratifying the same." Any nine would be sufficient to put the proposed government in operation as to them, thus leaving the remainder of the thirteen to pursue such course as might be to each preferable. When this conclusion was reached, it became manifestly impracticable to designate beforehand the consenting States by name. Hence, in the final revision, the specific enumeration of the thirteen States was omitted, and the equivalent phrase "people of the United States" inserted in its place--plainly meaning the people of such States as should agree to unite on the terms proposed. The imposing fabric of political delusion, which has been erected on the basis of this simple transaction, disappears before the light of historical record.

Could the authors of the Constitution have foreseen the perversion to be made of their obvious meaning, it might have been prevented by an easy periphrasis--such as, "We, the people of the States hereby united," or something to the same effect. The word "people" in 1787, as in 1880, was, as it is, a collective noun, employed indiscriminately, either as a unit in such expressions as "this people," "a free people," etc., or in a distributive sense, as applied to the citizens or inhabitants of one state or country or a number of states or countries. When the Convention of the colony of Virginia, in 1774, instructed their delegates to the Congress that was to meet in Philadelphia, "to obtain a redress of those grievances, without which the people of America can neither be safe, free, nor happy," it was certainly not intended to convey the idea that the people of the American Continent, or even of the British colonies in America, constituted one political community. Nor did Edmund Burke have any such meaning when he said, in his celebrated speech in Parliament, in 1775, "The people of the colonies are descendants of Englishmen."

We need go no further than to the familiar language of King James's translation of the Bible for multiplied illustrations of this indiscriminate use of the term, both in its collective and distributive senses. For example, King Solomon prays at the dedication of the temple:

"That thine eyes may be open unto the supplication ... of thy people Israel, to hearken unto them in all that they call for unto thee. For thou didst separate them from among all the people of the earth, to be thine inheritance." (1 Kings viii, 52, 53.)

Here we have both the singular and plural senses of the same word--one people, Israel, and all the people of the earth--in two consecutive sentences. In "the people of the earth," the word people is used precisely as it is in the expression "the people of the United States" in the preamble to the Constitution, and has exactly the same force and effect. If in the latter case it implies that the people of Massachusetts and those of Virginia were mere fractional parts of one political community, it must in the former imply a like unity among the Philistines, the Egyptians, the Assyrians, Babylonians, and Persians, and all other "people of the earth," except the Israelites. Scores of examples of the same sort might be cited if it were necessary.[42]

In the Declaration of Independence we find precisely analogous instances of the employment of the singular form for both singular and plural senses--"one people," "a free people," in the former, and "the good people of these colonies" in the latter. Judge Story, in the excess of his zeal in behalf of a theory of consolidation, bases upon this last expression the conclusion that the assertion of independence was the act of "the whole people of the united colonies" as a unit; overlooking or suppressing the fact that, in the very same sentence, the colonies declare themselves "free and independent States"--not a free and independent state--repeating the words "independent States" three times.

If, however, the Declaration of Independence constituted one "whole people" of the colonies, then that geographical section of it, formerly known as the colony of Maryland, was in a state of revolt or "rebellion" against the others, as well as against Great Britain, from 1778 to 1781, during which period Maryland refused to ratify or be bound by the Articles of Confederation, which, according to this theory, was binding upon her, as a majority of the "whole people" had adopted it. A fortiori, North Carolina and Rhode Island were in a state of rebellion in 1789-'90, while they declined to ratify and recognize the Constitution adopted by the other eleven fractions of this united people. Yet no hint of any such pretension--of any claim of authority over them by the majority--of any assertion of "the supremacy of the Union"--is to be found in any of the records of that period.

It might have been unnecessary to bestow so much time and attention in exposing the absurdity of the deductions from a theory so false, but for the fact that it has been specious enough to secure the countenance of men of such distinction as Webster, Story, and Everett; and that it has been made the plea to justify a bloody war against that principle of State sovereignty and independence, which was regarded by the fathers of the Union as the corner-stone of the structure and the basis of the hope for its perpetuity.

[Footnote 38: Elliott's "Debates" (Washington edition, 1836), vol. iii, p. 54.]

[Footnote 39: Ibid., p. 72.]

[Footnote 40: Elliott's "Debates" (Washington edition, 1836), vol. iii, pp. 114, 115.]

[Footnote 41: Journal of the Federal Convention, May 29, 1787, 1 Elliott's "Debates."]

[Footnote 42: For a very striking illustration, see Deuteronomy vii, 6, 7.]

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Chapter VI

The Preamble to the Constitution--subject continued.--Growth of the Federal Government and Accretions of Power.--Revival of Old Errors.--Mistakes and Misstatements.--Webster, Story, and Everett.--Who "ordained and established" the Constitution?

In the progressive growth of the Government of the United States in power, splendor, patronage, and consideration abroad, men have been led to exalt the place of the Government above that of the States which created it. Those who would understand the true principles of the Constitution can not afford to lose sight of the essential plurality of idea invariably implied in the term "United States," wherever it is used in that instrument. No such unit as the United States is ever mentioned therein. We read that "no title of nobility shall be granted by the United States, and no person holding any office of profit or trust under them shall, without the consent of Congress, accept," etc.[43] "The President ... shall not receive, within that period, any other emolument from the United States, or any of them."[44] "The laws of the United States, and treaties made or which shall be made under their authority," etc.[45] "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies."[46] The Federal character of the Union is expressed by this very phraseology, which recognizes the distinct integrity of its members, not as fractional parts of one great unit, but as component units of an association. So clear was this to contemporaries, that it needed only to be pointed out to satisfy their scruples. We have seen how effectual was the answer of Mr. Madison to the objections raised by Patrick Henry. Mr. Tench Coxe, of Pennsylvania, one of the ablest political writers of his generation, in answering a similar objection, said: "If the Federal Convention had meant to exclude the idea of 'union'--that is, of several and separate sovereignties joining in a confederacy--they would have said, 'We, the people of America'; for union necessarily involves the idea of competent States, which complete consolidation excludes."[47]

More than forty years afterward, when the gradual accretions to the power, prestige, and influence of the central Government had grown to such extent as to begin to hide from view the purposes for which it was founded, those very objections, which in the beginning had been answered, abandoned, and thrown aside, were brought to light again, and presented to the country as expositions of the true meaning of the Constitution. Mr. Webster, one of the first to revive some of those early misconceptions so long ago refuted as to be almost forgotten, and to breathe into them such renewed vitality as his commanding genius could impart, in the course of his well-known debate in the Senate with Mr. Hayne, in 1830, said:

"It can not be shown that the Constitution is a compact between State governments. The Constitution itself, in its very front, refutes that proposition: it declares that it is ordained and established by the people of the United States. So far from saying that it is established by the governments of the several States, it does not even say that it is established by the people of the several States; but it pronounces that it is established by the people of the United States in the aggregate."[48]

Judge Story about the same time began to advance the same theory, but more guardedly and with less rashness of statement. It was not until thirty years after that it attained its full development in the annunciations of sectionists rather than statesmen. Two such may suffice as specimens:

Mr. Edward Everett, in his address delivered on the 4th of July, 1861, and already referred to, says of the Constitution: "That instrument does not purport to be a 'compact,' but a constitution of government. It appears, in its first sentence, not to have been entered into by the States, but to have been ordained and established by the people of the United States for themselves and their 'posterity.' The States are not named in it; nearly all the characteristic powers of sovereignty are expressly granted to the General Government and expressly prohibited to the States."[49] Mr. Everett afterward repeats the assertion that "the States are not named in it."[50]

But a yet more extraordinary statement of the "one people" theory is found in a letter addressed to the London "Times," in the same year, 1861, on the "Causes of the Civil War," by Mr. John Lothrop Motley, afterward Minister to the Court of St. James. In this letter Mr. Motley says of the Constitution of the United States:

"It was not a compact. Who ever heard of a compact to which there were no parties? or who ever heard of a compact made by a single party with himself? Yet the name of no State is mentioned in the whole document; the States themselves are only mentioned to receive commands or prohibitions; and the 'people of the United States' is the single party by whom alone the instrument is executed.

"The Constitution was not drawn up by the States, it was not promulgated in the name of the States, it was not ratified by the States. The States never acceded to it, and possess no power to secede from it. It was 'ordained and established' over the States by a power superior to the States; by the people of the whole land in their aggregate capacity," etc.

It would be very hard to condense a more amazing amount of audacious and reckless falsehood in the same space. In all Mr. Motley's array of bold assertions, there is not one single truth--unless it be, perhaps, that "the Constitution was not drawn up by the States." Yet it was drawn up by their delegates, and it is of such material as this, derived from writers whose reputation gives a semblance of authenticity to their statements, that history is constructed and transmitted.

One of the most remarkable--though, perhaps, the least important--of these misstatements is that which is also twice repeated by Mr. Everett--that the name of no State is mentioned in the whole document, or, as he puts it, "the States are not named in it." Very little careful examination would have sufficed to find, in the second section of the very first article of the Constitution, the names of every one of the thirteen then existent States distinctly mentioned, with the number of representatives to which each would be entitled, in case of acceding to the Constitution, until a census of their population could be taken. The mention there made of the States by name is of no special significance; it has no bearing upon any question of principle; and the denial of it is a purely gratuitous illustration of the recklessness of those from whom it proceeds, and the low estimate put on the intelligence of those addressed. It serves, however, to show how much credence is to be given to their authority as interpreters and expounders.

The reason why the names of the ratifying States were not mentioned has already been given: it was simply because it was not known which States would ratify. But, as regards mention of "the several States," "each State," "any State," "particular States," and the like, the Constitution is full of it. I am informed, by one who has taken the pains to examine carefully that document with reference to this very point, that--without including any mention of "the United States" or of "foreign states," and excluding also the amendments--the Constitution, in its original draft, makes mention of the States, as States, no less than seventy times; and of these seventy times, only three times in the way of prohibition of the exercise of a power. In fact, it is full of statehood. Leave out all mention of the States--I make no mere verbal point or quibble, but mean the States in their separate, several, distinct capacity--and what would remain would be of less account than the play of the Prince of Denmark with the part of Hamlet omitted.

But, leaving out of consideration for the moment all minor questions, the vital and essential point of inquiry now is, by what authority the Constitution was "ordained and established." Mr. Webster says it was done "by the people of the United States in the aggregate;" Mr. Everett repeats substantially the same thing; and Mr. Motley, taking a step further, says that "it was 'ordained and established' by a power superior to the States--by the people of the whole land in their aggregate capacity."

The advocates of this mischievous dogma assume the existence of an unauthorized, undefined power of a "whole people," or "people of the whole land," operating through the agency of the Philadelphia Convention, to impose its decrees upon the States. They forget, in the first place, that this Convention was composed of delegates, not of any one people, but of distinct States; and, in the second place, that their action had no force or validity whatever--in the words of Mr. Madison, that it was of no more consequence than the paper on which it was written--until approved and ratified by a sufficient number of States. The meaning of the preamble, "We, the people of the United States ... do ordain and establish this Constitution," is ascertained, fixed, and defined by the final article: "The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same." If it was already established, what need was there of further establishment? It was not ordained or established at all, until ratified by the requisite number of States. The announcement in the preamble of course had reference to that expected ratification, without which the preamble would have been as void as the body of the instrument. The assertion that "it was not ratified by the States" is so plainly and positively contrary, to well-known fact--so inconsistent with the language of the Constitution itself--that it is hard to imagine what was intended by it, unless it was to take advantage of the presumed ignorance of the subject among the readers of an English journal, to impose upon them, a preposterous fiction. It was State ratification alone--the ratification of the people of each State, independently of all other people--that gave force, vitality, and validity to the Constitution.

Judge Story, referring to the fact that the voters assembled in the several States, asks where else they could have assembled--a pertinent question on our theory, but the idea he evidently intended to convey was that the voting of "the people" by States was a mere matter of geographical necessity, or local convenience; just as the people of a State vote by counties; the people of a county by towns, "beats," or "precincts"; and the people of a city by wards. It is hardly necessary to say that, in all organized republican communities, majorities govern. When we speak of the will of the people of a community, we mean the will of a majority, which, when constitutionally expressed, is binding on any minority of the same community.

If, then, we can conceive, and admit for a moment, the possibility that, when the Constitution was under consideration, the people of the United States were politically "one people"--a collective unit--two deductions are clearly inevitable: In the first place, each geographical division of this great community would have been entitled to vote according to its relative population; and, in the second, the expressed will of the legal majority would have been binding upon the whole. A denial of the first proposition would be a denial of common justice and equal rights; a denial of the second would be to destroy all government and establish mere anarchy.

Now, neither of these principles was practiced or proposed or even imagined in the case of the action of the people of the United States (if they were one political community) upon the proposed Constitution. On the contrary, seventy thousand people in the State of Delaware had precisely the same weight--one vote--in its ratification, as seven hundred thousand (and more) in Virginia, or four hundred thousand in Pennsylvania. Would not this have been an intolerable grievance and wrong--would no protest have been uttered against it--if these had been fractional parts of one community of people?

Again, while the will of the consenting majority within any State was binding on the opposing minority in the same, no majority, or majorities, of States or people had any control whatever upon the people of another State. The Constitution was established, not "over the States," as asserted by Motley, but "between the States," and only "between the States so ratifying the same." Little Rhode Island, with her seventy thousand inhabitants, was not a mere fractional part of "the people of the whole land," during the period for which she held aloof, but was as free, independent, and unmolested, as any other sovereign power, notwithstanding the majority of more than three millions of "the whole people" on the other side of the question.

Before the ratification of the Constitution--when there was some excuse for an imperfect understanding or misconception of the terms proposed--Mr. Madison thus answered, in advance, the objections made on the ground of this misconception, and demonstrated its fallacy. He wrote:

"That it will be a federal and not a national act, as these terms are understood by objectors--the act of the people, as forming so many independent States, not as forming one aggregate nation--is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these has been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act."[51]

It is a tedious task to have to expose the misstatements, both of fact and of principle, which have occupied so much attention, but it is rendered necessary by the extent to which they have been imposed upon the acceptance of the public, through reckless assertion and confident and incessant repetition.

"'I remember,' says Mr. Webster, 'to have heard Chief-Justice Marshall ask counsel, who was insisting upon the authority of an act of legislation, if he thought an act of legislation could create or destroy a fact, or change the truth of history? "Would it alter the fact," said he, "if a Legislature should solemnly enact that Mr. Hume never wrote the History of England?" A Legislature may alter the law,' continues Mr. Webster, 'but no power can reverse a fact.' Hence, if the Convention of 1787 had expressly declared that the Constitution was [to be] ordained by 'the people of the United States in the aggregate,' or by the people of America as one nation, this would not have destroyed the fact that it was ratified by each State for itself, and that each State was bound only by 'its own voluntary act.'" (Bledsoe.)

But the Convention, as we have seen, said no such thing. No such community as "the people of the United States in the aggregate" is known to it, or ever acted on it. It was ordained, established, and ratified by the people of the several States; and no theories or assertions of a later generation can change or conceal this fixed fact, as it stands revealed in the light of contemporaneous records.

[Footnote 43: Article I, section 9, clause 8.]

[Footnote 44: Article II, section 1, clause 6.]

[Footnote 45: Article III, section 2.]

[Footnote 46: Article III, section 3.]

[Footnote 47: "American Museum," February, 1788.]

[Footnote 48: Benton's "Abridgment," vol. x, p. 448.]

[Footnote 49: See address by Edward Everett at the Academy of Music, New York, July 4, 1861.]

[Footnote 50: Ibid.]

[Footnote 51: "Federalist," No. xxxix.]

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Chapter VII

Verbal Cavils and Criticisms.--"Compact," "Confederacy," "Accession," etc.--The "New Vocabulary."--The Federal Constitution a Compact, and the States acceded to it.--Evidence of the Constitution itself and of Contemporary Records.

I have habitually spoken of the Federal Constitution as a compact, and of the parties to it as sovereign States. These terms should not, and in earlier times would not, have required explanation or vindication. But they have been called in question by the modern school of consolidation. These gentlemen admit that the Government under the Articles of Confederation was a compact. Mr. Webster, in his rejoinder to Mr. Hayne, on the 27th of January, 1830, said:

"When the gentleman says the Constitution is a compact between the States, he uses language exactly applicable to the old Confederation. He speaks as if he were in Congress before 1789. He describes fully that old state of things then existing. The Confederation was, in strictness, a compact; the States, as States, were parties to it. We had no other General Government. But that was found insufficient and inadequate to the public exigencies. The people were not satisfied with it, and undertook to establish a better. They undertook to form a General Government, which should stand on a new basis--not a confederacy, not a league, not a compact between States, but a Constitution."[52]

Again, in his discussion with Mr. Calhoun, three years afterward, he vehemently reiterates the same denial. Of the Constitution, he says: "Does it call itself a compact? Certainly not. It uses the word 'compact' but once, and that when it declares that the States shall enter into no compact.[53] Does it call itself a league, a confederacy, a subsisting treaty between the States? Certainly not. There is not a particle of such language in all its pages."[54]

The artist, who wrote under his picture the legend "This is a horse," made effectual provision against any such cavil as that preferred by Mr. Webster and his followers, that the Constitution is not a compact, because it is not "so nominated in the bond." As well as I can recollect, there is no passage in the "Iliad" or the "Æneid" in which either of those great works "calls itself," or is called by its author, an epic poem, yet this would scarcely be accepted as evidence that they are not epic poems. In an examination of Mr. Webster's remarks, I do not find that he announces them to be either a speech or an argument; yet their claim to both these titles will hardly be disputed-- notwithstanding the verbal criticism on the Constitution just quoted.

The distinction attempted to be drawn between the language proper to a confederation and that belonging to a constitution, as indicating two different ideas, will not bear the test of examination and application to the case of the United States. It has been fully shown, in previous chapters, that the terms "Union," "Federal Union," "Federal Constitution," "Constitution of the Federal Government," and the like, were used--not merely in colloquial, informal speech, but in public proceedings and official documents--with reference to the Articles of Confederation, as freely as they have since been employed under the present Constitution. The former Union was--as Mr. Webster expressly admits--as nobody denies--a compact between States, yet it nowhere "calls itself" "a compact"; the word does not occur in it even the one time that it occurs in the present Constitution, although the contracting States are in both prohibited from entering into any "treaty, confederation, or alliance" with one another, or with any foreign power, without the consent of Congress; and the contracting or constituent parties are termed "United States" in the one just as in the other.

Mr. Webster is particularly unfortunate in his criticisms upon what he terms the "new vocabulary," in which the Constitution is styled a compact, and the States which ratified it are spoken of as having "acceded" to it. In the same speech, last quoted, he says:

"This word 'accede,' not found either in the Constitution itself or in the ratification of it by any one of the States, has been chosen for use here, doubtless not without a well-considered purpose. The natural converse of accession is secession; and therefore, when it is stated that the people of the States acceded to the Union, it may be more plausibly argued that they may secede from it. If, in adopting the Constitution, nothing was done but acceding to a compact, nothing would seem necessary, in order to break it up, but to secede from the same compact. But the term is wholly out of place. Accession, as a word applied to political associations, implies coming into a league, treaty, or confederacy, by one hitherto a stranger to it; and secession implies departing from such league or confederacy. The people of the United States have used no such form of expression in establishing the present Government."[55]

Repeating and reiterating in many forms what is substantially the same idea, and attributing the use of the terms which he attacks to an ulterior purpose, Mr. Webster says:

"This is the reason, sir, which makes it necessary to abandon the use of constitutional language for a new vocabulary, and to substitute, in the place of plain, historical facts, a series of assumptions. This is the reason why it is necessary to give new names to things; to speak of the Constitution, not as a constitution, but as a compact; and of the ratifications by the people, not as ratifications, but as acts of accession."[56]

In these and similar passages, Mr. Webster virtually concedes that, if the Constitution were a compact; if the Union were a confederacy; if the States had, as States, severally acceded to it--all which propositions he denies--then the sovereignty of the States and their right to secede from the Union would be deducible.

Now, it happens that these very terms--"compact," "confederacy," "accede," and the like--were the terms in familiar use by the authors of the Constitution and their associates with reference to that instrument and its ratification. Other writers, who have examined the subject since the late war gave it an interest which it had never commanded before, have collected such an array of evidence in this behalf that it is necessary only to cite a few examples.

The following language of Mr. Gerry, of Massachusetts, in the Convention of 1787, has already been referred to: "If nine out of thirteen States can dissolve the compact, six out of nine will be just as able to dissolve the new one hereafter."

Mr. Gouverneur Morris, one of the most pronounced advocates of a strong central government, in the Convention, said: "He came here to form a compact for the good of Americans. He was ready to do so with all the States. He hoped and believed they all would enter into such a compact. If they would not, he would be ready to join with any States that would. But, as the compact was to be voluntary, it is in vain for the Eastern States to insist on what the Southern States will never agree to."[57]

Mr. Madison, while inclining to a strong government, said: "In the case of a union of people under one Constitution, the nature of the pact has always been understood," etc.[58]

Mr. Hamilton, in the "Federalist," repeatedly speaks of the new government as a "confederate republic" and a "confederacy," and calls the Constitution a "compact." (See especially Nos. IX. and LXXXV.)

General Washington--who was not only the first President under the new Constitution, but who had presided over the Convention that drew it up--in letters written soon after the adjournment of that body to friends in various States, referred to the Constitution as a compact or treaty, and repeatedly uses the terms "accede" and "accession," and once the term "secession."

He asks what the opponents of the Constitution in Virginia would do, "if nine other States should accede to the Constitution."

Luther Martin, of Maryland, informs us that, in a committee of the General Convention of 1787, protesting against the proposed violation of the principles of the "perpetual union" already formed under the Articles of Confederation, he made use of such language as this:

"Will you tell us we ought to trust you because you now enter into a solemn compact with us? This you have done before, and now treat with the utmost contempt. Will you now make an appeal to the Supreme Being, and call on Him to guarantee your observance of this compact? The same you have formerly done for your observance of the Articles of Confederation, which you are now violating in the most wanton manner."[59]

It is needless to multiply the proofs that abound in the writings of the "fathers" to show that Mr. Webster's "new vocabulary" was the very language they familiarly used. Let two more examples suffice, from authority higher than that of any individual speaker or writer, however eminent--from authority second only, if at all inferior, to that of the text of the Constitution itself--that is, from the acts or ordinances of ratification by the States. They certainly ought to have been conclusive, and should not have been unknown to Mr. Webster, for they are the language of Massachusetts, the State which he represented in the Senate, and of New Hampshire, the State of his nativity.

The ratification of Massachusetts is expressed in the following terms:

"COMMONWEALTH OF MASSACHUSETTS.

"The Convention, having impartially discussed and fully considered a Constitution for the United States of America, reported to Congress by the convention of delegates from the United States of America, and submitted to us by a resolution of the General Court of the said Commonwealth, passed the 25th day of October last past, and acknowledging with grateful hearts the goodness of the Supreme Ruler of the universe, in affording the people of the United States, in the course of his Providence, an opportunity, deliberately and peaceably, without fraud or surprise, of entering into an explicit and solemn COMPACT with each other, by assenting to and ratifying a new Constitution, in order to form a more perfect Union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to themselves and their posterity--do, in the name and in behalf of the people of the Commonwealth of Massachusetts, assent to and ratify the said Constitution for the United States of America."

The ratification of New Hampshire is expressed in precisely the same words, save only the difference of date of the resolution of the Legislature (or "General Court") referred to, and also the use of the word "State" instead of "Commonwealth." Both distinctly accept it as a compact of the States "with each other"--which Mr. Webster, a son of New Hampshire and a Senator from Massachusetts, declared it was not; and not only so, but he repudiated the very "vocabulary" from which the words expressing the doctrine were taken.

It would not need, however, this abounding wealth of contemporaneous exposition--it does not require the employment of any particular words in the Constitution--to prove that it was drawn up as a compact between sovereign States entering into a confederacy with each other, and that they ratified and acceded to it separately, severally, and independently. The very structure of the whole instrument and the facts attending its preparation and ratification would suffice. The language of the final article would have been quite enough: "The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same." This is not the "language" of a superior imposing a mandate upon subordinates. The consent of the contracting parties is necessary to its validity, and then it becomes not the acceptance and recognition of an authority "over" them--as Mr. Motley represents--but of a compact between them. The simple word "between" is incompatible with any other idea than that of a compact by independent parties.

If it were possible that any doubt could still exist, there is one provision in the Constitution which stamps its character as a compact too plainly for cavil or question. The Constitution, which had already provided for the representation of the States in both Houses of Congress, thereby bringing the matter of representation within the power of amendment, in its fifth article contains a stipulation that "no State, without its [own] consent, shall be deprived of its equal suffrage in the Senate." If this is not a compact between the States, the smaller States have no guarantee for the preservation of their equality of representation in the United States Senate. If the obligation of a contract does not secure it, the guarantee itself is liable to amendment, and may be swept away at the will of three fourths of the States, without wrong to any party--for, according to this theory, there is no party of the second part.

[Footnote 52: Gales and Seaton's "Register of Congressional Debates," vol. vi, Part I, p. 93.]

[Footnote 53: The words "with another State or with a foreign power" should have been added to make this statement accurate.]

[Footnote 54: "Congressional Debates," vol. ix, Part I, p. 563.]

[Footnote 55: "Congressional Debates," vol. ix, Part I, p. 566.]

[Footnote 56: Ibid., pp. 557, 558.]

[Footnote 57: "Madison Papers," pp. 1081, 1082.]

[Footnote 58: Ibid., p. 1184.]

[Footnote 59: Luther Martin's "Genuine Information," in Wilbur Curtiss's "Secret Proceedings and Debates of the Convention," p. 29.]

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VIII. Sovereignty

"The term 'sovereign' or 'sovereignty,'" says Judge Story, "is used in different senses, which often leads to a confusion of ideas, and sometimes to very mischievous and unfounded conclusions." Without any disrespect for Judge Story, or any disparagement of his great learning and ability, it may safely be added that he and his disciples have contributed not a little to the increase of this confusion of ideas and the spread of these mischievous and unfounded conclusions. There is no good reason whatever why it should be used in different senses, or why there should be any confusion of ideas as to its meaning. Of all the terms employed in political science, it is one of the most definite and intelligible. The definition of it given by that accurate and lucid publicist, Burlamaqui, is simple and satisfactory--that "sovereignty is a right of commanding in the last resort in civil society."[60] The original seat of this sovereignty he also declares to be in the people. "But," he adds, "when once the people have transferred their right to a sovereign [i.e., a monarch], they can not, without contradiction, be supposed to continue still masters of it."[61] This is in strict accord with the theory of American republicanism, the peculiarity of which is that the people never do transfer their right of sovereignty, either in whole or in part. They only delegate to their governments the exercise of such of its functions as may be necessary, subject always to their own control, and to reassumption whenever such government fails to fulfill the purposes for which it was instituted.

I think it has already been demonstrated that, in this country, the only political community--the only independent corporate unit through which the people can exercise their sovereignty, is the State. Minor communities--as those of counties, cities, and towns--are merely fractional subdivisions of the State; and these do not affect the evidence that there was not such a political community as the "people of the United States in the aggregate."

That the States were severally sovereign and independent when they were united under the Articles of Confederation, is distinctly asserted in those articles, and is admitted even by the extreme partisans of consolidation. Of right, they are still sovereign, unless they have surrendered or been divested of their sovereignty; and those who deny the proposition have been vainly called upon to point out the process by which they have divested themselves, or have been divested of it, otherwise than by usurpation.

Since Webster spoke and Story wrote upon the subject, however, the sovereignty of the States has been vehemently denied, or explained away as only a partial, imperfect, mutilated sovereignty. Paradoxical theories of "divided sovereignty" and "delegated sovereignty" have arisen, to create that "confusion of ideas" and engender those "mischievous and unfounded conclusions," of which Judge Story speaks. Confounding the sovereign authority of the people with the delegated powers conferred by them upon their governments, we hear of a Government of the United States "sovereign within its sphere," and of State governments "sovereign in their sphere"; of the surrender by the States of part of their sovereignty to the United States, and the like. Now, if there be any one great principle pervading the Federal Constitution, the State Constitutions, the writings of the fathers, the whole American system, as clearly as the sunlight pervades the solar system, it is that no government is sovereign--that all governments derive their powers from the people, and exercise them in subjection to the will of the people--not a will expressed in any irregular, lawless, tumultuary manner, but the will of the organized political community, expressed through authorized and legitimate channels. The founders of the American republics never conferred, nor intended to confer, sovereignty upon either their State or Federal Governments.

If, then, the people of the States, in forming a Federal Union, surrendered--or, to use Burlamaqui's term, transferred--or if they meant to surrender or transfer--part of their sovereignty, to whom was the transfer made? Not to "the people of the United States in the aggregate"; for there was no such people in existence, and they did not create or constitute such a people by merger of themselves. Not to the Federal Government; for they disclaimed, as a fundamental principle, the sovereignty of any government. There was no such surrender, no such transfer, in whole or in part, expressed or implied. They retained, and intended to retain, their sovereignty in its integrity--undivided and indivisible.

"But, indeed," says Mr. Motley, "the words 'sovereign' and 'sovereignty' are purely inapplicable to the American system. In the Declaration of Independence the provinces declare themselves 'free and independent States,' but the men of those days knew that the word 'sovereign' was a term of feudal origin. When their connection with a time-honored feudal monarchy was abruptly severed, the word 'sovereign' had no meaning for us."[62]

If this be true, "the men of those days" had a very extraordinary way of expressing their conviction that the word "had no meaning for us." We have seen that, in the very front of their Articles of Confederation, they set forth the conspicuous declaration that each State retained "its sovereignty, freedom, and independence."

Massachusetts--the State, I believe, of Mr. Motley's nativity and citizenship--in her original Constitution, drawn up by "men of those days," made this declaration:

"The people inhabiting the territory formerly called the Province of Massachusetts Bay do hereby solemnly and mutually agree with each other to form themselves into a free, sovereign, and independent body politic, or State, by the name of The Commonwealth of Massachusetts."

New Hampshire, in her Constitution, as revised in 1792, had identically the same declaration, except as regards the name of the State and the word "State" instead of "Commonwealth."

Mr. Madison, one of the most distinguished of the men of that day and of the advocates of the Constitution, in a speech already once referred to, in the Virginia Convention of 1788, explained that "We, the people," who were to establish the Constitution, were the people of "thirteen SOVEREIGNTIES."[63]

In the "Federalist," he repeatedly employs the term--as, for example, when he says: "Do they [the fundamental principles of the Confederation] require that, in the establishment of the Constitution, the States should be regarded as distinct and independent SOVEREIGNS? They are so regarded by the Constitution proposed."[64]

Alexander Hamilton--another contemporary authority, no less illustrious--says, in the "Federalist":

"It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union."[65]

In the same paragraph he uses these terms, "sovereign" and "sovereignty," repeatedly--always with reference to the States, respectively and severally.

Benjamin Franklin advocated equality of suffrage in the Senate as a means of securing "the sovereignties of the individual States."[66] James Wilson, of Pennsylvania, said sovereignty "is in the people before they make a Constitution, and remains in them," and described the people as being "thirteen independent sovereignties."[67] Gouverneur Morris, who was, as well as Wilson, one of the warmest advocates in the Convention of a strong central government, spoke of the Constitution as "a compact," and of the parties to it as "each enjoying sovereign power."[68] Roger Sherman, of Connecticut, declared that the Government "was instituted by a number of sovereign States."[69] Oliver Ellsworth, of the same State, spoke of the States as "sovereign bodies."[70] These were all eminent members of the Convention which formed the Constitution.

There was scarcely a statesman of that period who did not leave on record expressions of the same sort. But why multiply citations? It is very evident that the "men of those days" entertained very different views of sovereignty from those set forth by the "new lights" of our day. Far from considering it a term of feudal origin, "purely inapplicable to the American system," they seem to have regarded it as a very vital principle in that system, and of necessity belonging to the several States--and I do not find a single instance in which they applied it to any political organization, except the States.

Their ideas were in entire accord with those of Vattel, who, in his chapter "Of Nations or Sovereign States," writes, "Every nation that governs itself, under what form soever, without any dependence on foreign power, is a sovereign state."[71]

In another part of the same chapter he gives a lucid statement of the nature of a confederate republic, such as ours was designed to be. He says:

"Several sovereign and independent states may unite themselves together by a perpetual confederacy, without each in particular ceasing to be a perfect state. They will form together a federal republic: the deliberations in common will offer no violence to the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfill the engagements into which he has very willingly entered."[72]

What this celebrated author means here by a person, is explained by a subsequent passage: "The law of nations is the law of sovereigns; states free and independent are moral persons."[73]

[Footnote 60: "Principes du Droit Politique," chap. v, section I; also, chap. vii, section 1.]

[Footnote 61: Ibid., chap. vii, section 12.]

[Footnote 62: "Rebellion Record," vol. i, Documents, p. 211.]

[Footnote 63: Elliott's "Debates," vol. iii, p. 114, edition of 1836.]

[Footnote 64: "Federalist," No. xl.]

[Footnote 65: Ibid, No. lxxxi.]

[Footnote 66: See Elliott's "Debates," vol. v, p. 266.]

[Footnote 67: Ibid., vol. ii, p. 443.]

[Footnote 68: See "Life of Gouverneur Morris," vol. iii, p. 193.]

[Footnote 69: See "Writings of John Adams," vol. vii, letter of Roger Sherman.]

[Footnote 70: See Eliott's "Debates," vol. ii, p. 197.]

[Footnote 71: "Law of Nations," Book I, chap. i, section 4.]

[Footnote 72: Ibid., section 10.]

[Footnote 73: Ibid., section 12.]

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Chapter IX

The same Subject continued.--The Tenth Amendment.--Fallacies exposed.--"Constitution," "Government," and "People" distinguished from each other.--Theories refuted by Facts.--Characteristics of Sovereignty.--Sovereignty identified.--Never thrown away.

If any lingering doubt could have existed as to the reservation of their entire sovereignty by the people of the respective States, when they organized the Federal Union, it would have been removed by the adoption of the tenth amendment to the Constitution, which was not only one of the amendments proposed by various States when ratifying that instrument, but the particular one in which they substantially agreed, and upon which they most urgently insisted. Indeed, it is quite certain that the Constitution would never have received the assent and ratification of Massachusetts, New Hampshire, New York, North Carolina, and perhaps other States, but for a well-grounded assurance that the substance of this amendment would be adopted as soon as the requisite formalities could be complied with. That amendment is in these words:

"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 full meaning of this article may not be as clear to us as it was to the men of that period, on account of the confusion of ideas by which the term "people"--plain enough to them--has since been obscured, and also the ambiguity attendant upon the use of the little conjunction or, which has been said to be the most equivocal word in our language, and for that reason has been excluded from indictments in the English courts. The true intent and meaning of the provision, however, may be ascertained from an examination and comparison of the terms in which it was expressed by the various States which proposed it, and whose ideas it was intended to embody.

Massachusetts and New Hampshire, in their ordinances of ratification, expressing the opinion "that certain amendments and alterations in the said Constitution would remove the fears and quiet the apprehensions of many of the good people of this Commonwealth [State (New Hampshire)], and more effectually guard against an undue administration of the Federal Government," each recommended several such amendments, putting this at the head in the following form:

"That it be explicitly declared that all powers not expressly delegated by the aforesaid Constitution are reserved to the several States, to be by them exercised."

Of course, those stanch republican communities meant the people of the States--not their governments, as something distinct from their people.

New York expressed herself as follows:

"That the powers of government may be reassumed by the people whenever it shall 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."

South Carolina expressed the idea thus:

"This Convention doth also declare that no section or paragraph of the said 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."

North Carolina proposed it in these terms:

"Each State in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States or to the departments of the General Government."

Rhode Island gave in her long-withheld assent to the Constitution, "in full confidence" that certain proposed amendments would be adopted, the first of which was expressed in these words:

"That Congress shall guarantee to each State its SOVEREIGNTY, freedom, and independence, and every power, jurisdiction, and right, which is not by this Constitution expressly delegated to the United States."

This was in May, 1790, when nearly three years had been given to discussion and explanation of the new Government by its founders and others, when it had been in actual operation for more than a year, and when there was every advantage for a clear understanding of its nature and principles. Under such circumstances, and in the "full confidence" that this language expressed its meaning and intent, the people of Rhode Island signified their "accession" to the "Confederate Republic" of the States already united.

No objection was made from any quarter to the principle asserted in these various forms; or to the amendment in which it was finally expressed, although many thought it unnecessary, as being merely declaratory of what would have been sufficiently obvious without it--that the functions of the Government of the United States were strictly limited to the exercise of such powers as were expressly delegated, and that the people of the several States retained all others.

Is it compatible with reason to suppose that people so chary of the delegation of specific powers or functions could have meant to surrender or transfer the very basis and origin of all power--their inherent sovereignty--and this, not by express grant, but by implication?

Mr. Everett, following, whether consciously or not, in the line of Mr. Webster's ill-considered objection to the term "compact," takes exception to the sovereignty of the States on the ground that "the word 'sovereignty' does not occur" in the Constitution. He admits that the States were sovereign under the Articles of Confederation. How could they relinquish or be deprived of their sovereignty without even a mention of it--when the tenth amendment confronts us with the declaration that nothing was surrendered by implication--that everything was reserved unless expressly delegated to the United States or prohibited to the States? Here is an attribute which they certainly possessed--which nobody denies, or can deny, that they did possess--and of which Mr. Everett says no mention is made in the Constitution. In what conceivable way, then, was it lost or alienated?

Much has been said of the "prohibition" of the exercise by the States of certain functions of sovereignty; such as, making treaties, declaring war, coining money, etc. This is only a part of the general compact, by which the contracting parties covenant, one with another, to abstain from the separate exercise of certain powers, which they agree to intrust to the management and control of the union or general agency of the parties associated. It is not a prohibition imposed upon them from without, or from above, by any external or superior power, but is self-imposed by their free consent. The case is strictly analogous to that of individuals forming a mercantile or manufacturing copartnership, who voluntarily agree to refrain, as individuals, from engaging in other pursuits or speculations, from lending their individual credit, or from the exercise of any other right of a citizen, which they may think proper to subject to the consent, or intrust to the management of the firm.

The prohibitory clauses of the Constitution referred to are not at all a denial of the full sovereignty of the States, but are merely an agreement among them to exercise certain powers of sovereignty in concert, and not separately and apart.

There is one other provision of the Constitution, which is generally adduced by the friends of centralism as antagonistic to State sovereignty. This is found in the second clause of the sixth article, as follows:

"This 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, anything in the Constitution or laws of any State to the contrary notwithstanding."

This enunciation of a principle, which, even if it had not been expressly declared, would have been a necessary deduction from the acceptance of the Constitution itself, has been magnified and perverted into a meaning and purpose entirely foreign to that which plain interpretation is sufficient to discern. Mr. Motley thus dilates on the subject:

"Could language be more imperial? Could the claim to State 'sovereignty' be more completely disposed of at a word? How can that be sovereign, acknowledging no superior, supreme, which has voluntarily accepted a supreme law from something which it acknowledges as superior?"[74]

The mistake which Mr. Motley--like other writers of the same school--makes is one which is disposed of by a very simple correction. The States, which ordained and established the Constitution, accepted nothing besides what they themselves prescribed. They acknowledged no superior. The supremacy was both in degree and extent only that which was delegated by the States to their common agent.

There are some other considerations which may conduce to a clearer understanding of this supremacy of the Constitution and the laws made in pursuance thereof:

1. In the first place, it must be remembered that, when the Federal Constitution was formed, each then existing State already had its own Constitution and code of statute laws. It was, no doubt, primarily with reference to these that the provision was inserted, and not in the expectation of future conflicts or discrepancies. It is in this light alone that Mr. Madison considers it in explaining and vindicating it in the "Federalist."[75]

2. Again, it is to be observed that the supremacy accorded to the general laws of the United States is expressly limited to those enacted in conformity with the Constitution, or, to use the exact language, "made in pursuance thereof." Mr. Hamilton, in another chapter of the "Federalist," calls particular attention to this, saying (and the italics are all his own) "that the laws of the Confederacy, as to the enumerated and legitimate objects of its jurisdiction, will become the supreme law of the land," and that the State functionaries will coöperate in their observance and enforcement with the General Government, "as far as its just and constitutional authority extends."[76]

3. In the third place, it is not the Government of the United States that is declared to be supreme, but the Constitution and the laws and treaties made in accordance with it. The proposition was made in the Convention to organize a government consisting of "supreme legislative, executive, and judicial powers," but it was not adopted. Its deliberate rejection is much more significant and conclusive than if it had never been proposed. Correction of so gross an error as that of confounding the Government with the Constitution ought to be superfluous, but so crude and confused are the ideas which have been propagated on the subject, that no misconception seems to be too absurd to be possible. Thus, it has not been uncommon, of late years, to hear, even in the highest places, the oath to support the Constitution, which is taken by both State and Federal officers, spoken of as an oath "to support the Government"--an obligation never imposed upon any one in this country, and which the men who made the Constitution, with their recent reminiscences of the Revolution, the battles of which they had fought with halters around their necks, would have been the last to prescribe. Could any assertion be less credible than that they proceeded to institute another supreme government which it would be treason to resist?

This confusion of ideas pervades the treatment of the whole subject of sovereignty. Mr. Webster has said, and very justly so far as these United States are concerned: "The sovereignty of government is an idea belonging to the other side of the Atlantic. No such thing is known in North America. Our governments are all limited. In Europe sovereignty is of feudal origin, and imports no more than the state of the sovereign. It comprises his rights, duties, exemptions, prerogatives, and powers. But with us all power is with the people. They alone are sovereign, and they erect what governments they please, and confer on them such powers as they please. None of these governments are sovereign, in the European sense of the word, all being restrained by written constitutions."[77]

But the same intellect, which can so clearly discern and so lucidly define the general proposition, seems to be covered by a cloud of thick darkness when it comes to apply it to the particular case in issue. Thus, a little afterward, we have the following:

"There is no language in the whole Constitution applicable to a confederation of States. If the States be parties, as States, what are their rights, and what their respective covenants and stipulations? and where are their rights, covenants, and stipulations expressed? In the Articles of Confederation they did make promises, and did enter into engagements, and did plight the faith of each State for their fulfillment; but in the Constitution there is nothing of that kind. The reason is that, in the Constitution, it is the people who speak and not the States. The people ordain the Constitution, and therein address themselves to the States and to the Legislatures of the States in the language of injunction and prohibition."[78]

It is surprising that such inconsistent ideas should proceed from a source so eminent. Its author falls into the very error which he had just before so distinctly pointed out, in confounding the people of the States with their governments. In the vehemence of his hostility to State sovereignty, he seems--as all of his disciples seem--unable even to comprehend that it means the sovereignty, not of State governments, but of people who make them. With minds preoccupied by the unreal idea of one great people of a consolidated nation, these gentlemen are blinded to the plain and primary truth that the only way in which the people ordained the Constitution was as the people of States. When Mr. Webster says that "in the Constitution it is the people who speak, and not the States," he says what is untenable. The States are the people. The people do not speak, never have spoken, and never can speak, in their sovereign capacity (without a subversion of our whole system), otherwise than as the people of States.

There are but two modes of expressing their sovereign will known to the people of this country. One is by direct vote--the mode adopted by Rhode Island in 1788, when she rejected the Constitution. The other is the method, more generally pursued, of acting by means of conventions of delegates elected expressly as representatives of the sovereignty of the people. Now, it is not a matter of opinion or theory or speculation, but a plain, undeniable, historical fact, that there never has been any act or expression of sovereignty in either of these modes by that imaginary community, "the people of the United States in the aggregate." Usurpations of power by the Government of the United States, there may have been, and may be again, but there has never been either a sovereign convention or a direct vote of the "whole people" of the United States to demonstrate its existence as a corporate unit. Every exercise of sovereignty by any of the people of this country that has actually taken place has been by the people of States as States. In the face of this fact, is it not the merest self-stultification to admit the sovereignty of the people and deny it to the States, in which alone they have community existence?

This subject is one of such vital importance to a right understanding of the events which this work is designed to record and explain, that it can not be dismissed without an effort in the way of recapitulation and conclusion, to make it clear beyond the possibility of misconception.

According to the American theory, every individual is endowed with certain unalienable rights, among which are "life, liberty, and the pursuit of happiness." He is entitled to all the freedom, in these and in other respects, that is consistent with the safety and the rights of others and the weal of the community, but political sovereignty, which is the source and origin of all the powers of government--legislative, executive, and judicial--belongs to, and inheres in, the people of an organized political community. It is an attribute of the whole people of such a community. It includes the power and necessarily the duty of protecting the rights and redressing the wrongs of individuals, of punishing crimes, enforcing contracts, prescribing rules for the transfer of property and the succession of estates, making treaties with foreign powers, levying taxes, etc. The enumeration of particulars might be extended, but these will suffice as illustrations.

These powers are of course exercised through the agency of governments, but the governments are only agents of the sovereign--responsible to it, and subject to its control. This sovereign--the people, in the aggregate, of each political community--delegates to the government the exercise of such powers, or functions, as it thinks proper, but in an American republic never transfers or surrenders sovereignty. That remains, unalienated and unimpaired. It is by virtue of this sovereignty alone that the Government, its authorized agent, commands the obedience of the individual citizen, to the extent of its derivative, dependent, and delegated authority. The ALLEGIANCE of the citizen is due to the sovereign alone.

Thus far, I think, all will agree. No American statesman or publicist would venture to dispute it. Notwithstanding the inconsiderate or ill-considered expressions thrown out by some persons about the unity of the American people from the beginning, no respectable authority has ever had the hardihood to deny that, before the adoption of the Federal Constitution, the only sovereign political community was the people of the State--the people of each State. The ordinary exercise of what are generally termed the powers of sovereignty was by and through their respective governments; and, when they formed a confederation, a portion of those powers was intrusted to the General Government, or agency. Under the Confederation, the Congress of the United States represented the collective power of the States; but the people of each State alone possessed sovereignty, and consequently were entitled to the allegiance of the citizen.

When the Articles of Confederation were amended, when the new Constitution was substituted in their place and the General Government reorganized, its structure was changed, additional powers were conferred upon it, and thereby subtracted from the powers theretofore exercised by the State governments; but the seat of sovereignty--the source of all those delegated and dependent powers--was not disturbed. There was a new Government or an amended Government--it is entirely immaterial in which of these lights we consider it--but no new PEOPLE was created or constituted. The people, in whom alone sovereignty inheres, remained just as they had been before. The only change was in the form, structure, and relations of their governmental agencies.

No doubt, the States--the people of the States--if they had been so disposed, might have merged themselves into one great consolidated State, retaining their geographical boundaries merely as matters of convenience. But such a merger must have been distinctly and formally stated, not left to deduction or implication.

Men do not alienate even an estate, without positive and express terms and stipulations. But in this case not only was there no express transfer--no formal surrender--of the preëxisting sovereignty, but it was expressly provided that nothing should be understood as even delegated--that everything was reserved, unless granted in express terms. The monstrous conception of the creation of a new people, invested with the whole or a great part of the sovereignty which had previously belonged to the people of each State, has not a syllable to sustain it in the Constitution, but is built up entirely upon the palpable misconstruction of a single expression in the preamble.

In denying that there is any such collective unit as the people of the United States in the aggregate, of course I am not to be understood as denying that there is such a political organization as the United States, or that there exists, with large and distinct powers, a Government of the United States; but it is claimed that the Union, as its name implies, is constituted of States. As a British author,[79] referring to the old Teutonic system, has expressed the same idea, the States are the integers, the United States the multiple which results from them. The Government of the United States derives its existence from the same source, and exercises its functions by the will of the same sovereignty that creates and confers authority upon the State governments. The people of each State are, in either case, the source. The only difference is that, in the creation of the State governments, each sovereign acted alone; in that of the Federal Government, they acted in coöperation with the others. Neither the whole nor any part of their sovereignty has been surrendered to either Government.

To whom, in fine, could the States have surrendered their sovereignty? Not to the mass of the people inhabiting the territory possessed by all the States, for there was no such community in existence, and they took no measures for the organization of such a community. If they had intended to do so, the very style, "United States," would have been a palpable misnomer, nor would treason have been defined as levying war against them. Could it have been transferred to the Government of the Union? Clearly not, in accordance with the ideas and principles of those who made the Declaration of Independence, adopted the Articles of Confederation, and established the Constitution of the United States; for in each and all of these the corner-stone is the inherent and inalienable sovereignty of the people. To have transferred sovereignty from the people to a Government would have been to have fought the battles of the Revolution in vain--not for the freedom and independence of the States, but for a mere change of masters. Such a thought or purpose could not have been in the heads or hearts of those who molded the Union, and could have found lodgment only when the ebbing tide of patriotism and fraternity had swept away the landmarks which they erected who sought by the compact of union to secure and perpetuate the liberties then possessed. The men who had won at great cost the independence of their respective States were deeply impressed with the value of union, but they could never have consented, like "the base Judean," to fling away the priceless pearl of State sovereignty for any possible alliance.

[Footnote 74: "Rebellion Record," vol. i, Documents, p. 213.]

[Footnote 75: "Federalist," No. xliv.]

[Footnote 76: "Federalist," No. xxvii.]

[Footnote 77: "Congressional Debates," vol. ix, Part I, p. 565.]

[Footnote 78: Ibid., p. 566.]

[Footnote 79: Sir Francis Palgrave, quoted by Mr. Calhoun, "Congressional Debates," vol. ix, Part I, p. 541.]

Spotted a typo or a problem in this chapter? Tell us

Chapter X

A Recapitulation.--Remarkable Propositions of Mr. Gouverneur Morris in the Convention of 1787, and their Fate.--Further Testimony.--Hamilton, Madison, Washington, Marshall, etc.--Later Theories.--Mr. Webster: his Views at Various Periods.--Speech at Capon Springs.--State Rights not a Sectional Theory.

Looking back for a moment at the ground over which we have gone, I think it may be fairly asserted that the following propositions have been clearly and fully established:

1. That the States of which the American Union was formed, from the moment when they emerged from their colonial or provincial condition, became severally sovereign, free, and independent States--not one State, or nation.

2. That the union formed under the Articles of Confederation was a compact between the States, in which these attributes of "sovereignty, freedom, and independence," were expressly asserted and guaranteed.

3. That, in forming the "more perfect union" of the Constitution, afterward adopted, the same contracting powers formed an amended compact, without any surrender of these attributes of sovereignty, freedom, and independence, either expressed or implied: on the contrary, that, by the tenth amendment to the Constitution, limiting the power of the Government to its express grants, they distinctly guarded against the presumption of a surrender of anything by implication.

4. That political sovereignty resides, neither in individual citizens, nor in unorganized masses, nor in fractional subdivisions of a community, but in the people of an organized political body.

5. That no "republican form of government," in the sense in which that expression is used in the Constitution, and was generally understood by the founders of the Union--whether it be the government of a State or of a confederation of States--is possessed of any sovereignty whatever, but merely exercises certain powers delegated by the sovereign authority of the people, and subject to recall and reassumption by the same authority that conferred them.

6. That the "people" who organized the first confederation, the people who dissolved it, the people who ordained and established the Constitution which succeeded it, the only people, in fine, known or referred to in the phraseology of that period--whether the term was used collectively or distributively--were the people of the respective States, each acting separately and with absolute independence of the others.

7. That, in forming and adopting the Constitution, the States, or the people of the States--terms which, when used with reference to acts performed in a sovereign capacity, are precisely equivalent to each other--formed a new Government, but no new people; and that, consequently, no new sovereignty was created--for sovereignty in an American republic can belong only to a people, never to a government--and that the Federal Government is entitled to exercise only the powers delegated to it by the people of the respective States.

8. That the term "people," in the preamble to the Constitution and in the tenth amendment, is used distributively; that the only "people of the United States" known to the Constitution are the people of each State in the Union; that no such political community or corporate unit as one people of the United States then existed, has ever been organized, or yet exists; and that no political action by the people of the United States in the aggregate has ever taken place, or ever can take place, under the Constitution.

The fictitious idea of one people of the United States, contradicted in the last paragraph, has been so impressed upon the popular mind by false teaching, by careless and vicious phraseology, and by the ever-present spectacle of a great Government, with its army and navy, its custom-houses and post-offices, its multitude of office-holders, and the splendid prizes which it offers to political ambition, that the tearing away of these illusions and presentation of the original fabric, which they have overgrown and hidden from view, have no doubt been unwelcome, distasteful, and even repellent to some of my readers. The artificial splendor which makes the deception attractive is even employed as an argument to prove its reality.

The glitter of the powers delegated to the agent serves to obscure the perception of the sovereign power of the principal by whom they are conferred, as, by the unpracticed eye, the showy costume and conspicuous functions of the drum-major are mistaken for emblems of chieftaincy--while the misuse or ambiguous use of the term "Union" and its congeners contributes to increase the confusion.

So much the more need for insisting upon the elementary truths which have been obscured by these specious sophistries. The reader really desirous of ascertaining truth is, therefore, again cautioned against confounding two ideas so essentially distinct as that of government, which is derivative, dependent, and subordinate, with that of the people, as an organized political community, which is sovereign, without any other than self-imposed limitations, and such as proceed from the general principles of the personal rights of man.

It has been said, in a foregoing chapter, that the authors of the Constitution could scarcely have anticipated the idea of such a community as the people of the United States in one mass. Perhaps this expression needs some little qualification, for there is rarely a fallacy, however stupendous, that is wholly original. A careful examination of the records of the Convention of 1787 exhibits one or perhaps two instances of such a suggestion--both by the same person--and the result in each case is strikingly significant.

The original proposition made concerning the office of President of the United States contemplated his election by the Congress, or, as it was termed by the proposer, "the national Legislature." On the 17th of July, this proposition being under consideration, Mr. Gouverneur Morris moved that the words "national Legislature" be stricken out, and "citizens of the United States" inserted. The proposition was supported by Mr. James Wilson--both of these gentlemen being delegates from Pennsylvania, and both among the most earnest advocates of centralism in the Convention.

Now, it is not at all certain that Mr. Morris had in view an election by the citizens of the United States "in the aggregate," voting as one people. The language of his proposition is entirely consistent with the idea of as election by the citizens of each State, voting separately and independently, though it is ambiguous, and may admit of the other construction. But this is immaterial. The proposition was submitted to a vote, and received the approval of only one State--Pennsylvania, of which Mr. Morris and Mr. Wilson were both representatives. Nine States voted against it.[80]

Six days afterward (July 23d), in a discussion of the proposed ratification of the Constitution by Conventions of the people of each State, Mr. Gouverneur Morris--as we learn from Mr. Madison--"moved that the reference of the plan [i.e., of the proposed Constitution] be made to one General Convention, chosen and authorized by the people, to consider, amend, and establish the same."[81]

Here the issue seems to have been more distinctly made between the two ideas of people of the States and one people in the aggregate. The fate of the latter is briefly recorded in the two words, "not seconded." Mr. Morris was a man of distinguished ability, great personal influence, and undoubted patriotism, but, out of all that assemblage--comprising, as it did, such admitted friends of centralism as Hamilton, King, Wilson, Randolph, Pinckney, and others--there was not one to sustain him in the proposition to incorporate into the Constitution that theory which now predominates, the theory on which was waged the late bloody war, which was called a "war for the Union." It failed for want of a second, and does not even appear in the official journal of the Convention. The very fact that such a suggestion was made would be unknown to us but for the record kept by Mr. Madison.

The extracts which have been given, in treating of special branches of the subject, from the writings and speeches of the framers of the Constitution and other statesmen of that period, afford ample proof of their entire and almost unanimous accord with the principles which have been established on the authority of the Constitution itself, the acts of ratification by the several States, and other attestations of the highest authority and validity. I am well aware that isolated expressions may be found in the reports of debates on the General and State Conventions and other public bodies, indicating the existence of individual opinions seemingly inconsistent with these principles; that loose and confused ideas were sometimes expressed with regard to sovereignty, the relations between governments and people, and kindred subjects; and that, while the plan of the Constitution was under discussion, and before it was definitely reduced to its present shape, there were earnest advocates in the Convention of a more consolidated system, with a stronger central government. But these expressions of individual opinion only prove the existence of a small minority of dissentients from the principles generally entertained, and which finally prevailed in the formation of the Constitution. None of these ever avowed such extravagances of doctrine as are promulgated in this generation. No statesman of that day would have ventured to risk his reputation by construing an obligation to support the Constitution as an obligation to adhere to the Federal Government--a construction which would have insured the sweeping away of any plan of union embodying it, by a tempest of popular indignation from every quarter of the country. None of them suggested such an idea as that of the amalgamation of the people of the States into one consolidated mass--unless it was suggested by Mr. Gouverneur Morris in the proposition above referred to, in which he stood alone among the delegates of twelve sovereign States assembled in convention.

As to the features of centralism, or nationalism, which they did advocate, all the ability of this little minority of really gifted men failed to secure the incorporation of any one of them into the Constitution, or to obtain their recognition by any of the ratifying States. On the contrary, the very men who had been the leading advocates of such theories, on failing to secure their adoption, loyally accepted the result, and became the ablest and most efficient supporters of the principles which had prevailed. Thus, Mr. Hamilton, who had favored the plan of a President and Senate, both elected to hold office for life (or during good behavior), with a veto power in Congress on the action of the State Legislatures, became, through the "Federalist," in conjunction with his associates, Mr. Madison and Mr. Jay, the most distinguished expounder and advocate of the Constitution, as then proposed and afterward ratified, with all its Federal and State-rights features. In the ninth number of that remarkable series of political essays, he quotes, adopts, and applies to the then proposed Constitution, Montesquieu's description of a "CONFEDERATE REPUBLIC," a term which he (Hamilton) repeatedly employs.

In the eighty-first number of the same series, replying to apprehensions expressed by some that a State might be brought before the Federal courts to answer as defendant in suits instituted against her, he repels the idea in these plain and conclusive terms. The italics are my own:

"It is inherent in the nature of sovereignty not to be amenable to the suit of any individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the Convention, it will remain with the States, and the danger intimated must be merely ideal.... The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident that it could not be done without waging war against the contracting State; and to ascribe to the Federal courts, by mere implication, and in destruction of a preëxisting right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarranted."[82]

This extract is very significant, clearly showing that Mr. Hamilton assumed as undisputed propositions, in the first place, that the State was the "SOVEREIGN"; secondly, that this sovereignty could not be alienated, unless by express surrender; thirdly, that no such surrender had been made; and, fourthly, that the idea of applying coercion to a State, even to enforce the fulfillment of a duty, would be equivalent to waging war against a State--it was "altogether forced and unwarrantable."

In a subsequent number, Mr. Hamilton, replying to the objection that the Constitution contains no bill or declaration of rights, argues that it was entirely unnecessary, because in reality the people--that is, of course, the people, respectively, of the several States, who were the only people known to the Constitution or to the country--had surrendered nothing of their inherent sovereignty, but retained it unimpaired. He says: "Here, in strictness, the people surrender nothing; and, as they retain everything, they have no need of particular reservations." And again: "I go further, and affirm that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed Constitution, but would be absolutely dangerous. They would contain various exceptions to powers not granted, and on this very account would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done, which there is no power to do?"[83] Could language be more clear or more complete in vindication of the principles laid down in this work? Mr. Hamilton declares, in effect, that the grants to the Federal Government in the Constitution are not surrenders, but delegations of power by the people of the States; that sovereignty remains intact where it was before; and that the delegations of power were strictly limited to those expressly granted--in this, merely anticipating the tenth amendment, afterward adopted.

Finally, in the concluding article of the "Federalist," he bears emphatic testimony to the same principles, in the remark that "every Constitution for the United States must inevitably consist of a great variety of particulars, in which thirteen independent States are to be accommodated in their interests or opinions of interest.... Hence the necessity of molding and arranging all the particulars, which are to compose the whole, in such a manner as to satisfy all the parties to the compact."[84] There is no intimation here, or anywhere else, of the existence of any such idea as that of the aggregated people of one great consolidated state. It is an incidental enunciation of the same truth soon afterward asserted by Madison in the Virginia Convention--that the people who ordained and established the Constitution were "not the people as composing one great body, but the people as composing thirteen sovereignties".

Mr. Madison, in the Philadelphia Convention, had at first held views of the sort of government which it was desirable to organize, similar to those of Mr. Hamilton, though more moderate in extent. He, too, however, cordially conformed to the modifications in them made by his colleagues, and was no less zealous and eminent in defending and expounding the Constitution as finally adopted. His interpretation of its fundamental principles is so fully shown in the extracts which have already been given from his contributions to the "Federalist" and speeches in the Virginia Convention, that it would be superfluous to make any additional citation from them.

The evidence of Hamilton and Madison--two of the most eminent of the authors of the Constitution, and the two preeminent contemporary expounders of its meaning--is the most valuable that could be offered for its interpretation. That of all the other statesmen of the period only tends to confirm the same conclusions. The illustrious Washington, who presided over the Philadelphia Convention, in his correspondence, repeatedly refers to the proposed Union as a "Confederacy" of States, or a "confederated Government," and to the several States as "acceding," or signifying their "accession," to it, in ratifying the Constitution. He refers to the Constitution itself as "a compact or treaty," and classifies it among compacts or treaties between "men, bodies of men, or countries." Writing to Count Rochambeau, on January 8, 1788, he says that the proposed Constitution "is to be submitted to conventions chosen by the people in the several States, and by them approved or rejected"--showing what he understood by "the people of the United States," who were to ordain and establish it. These same people--that is, "the people of the several States"--he says, in a letter to Lafayette, April 28, 1788, "retain everything they do not, by express terms, give up." In a letter written to Benjamin Lincoln, October 26, 1788, he refers to the expectation that North Carolina will accede to the Union, and adds, "Whoever shall be found to enjoy the confidence of the States so far as to be elected Vice-President," etc.--showing that in the "confederated Government," as he termed it, the States were still to act independently, even in the selection of officers of the General Government. He wrote to General Knox, June 17, 1788, "I can not but hope that the States which may be disposed to make a secession will think often and seriously on the consequences." June 28, 1788, he wrote to General Pinckney that New Hampshire "had acceded to the new Confederacy," and, in reference to North Carolina, "I should be astonished if that State should withdraw from the Union."

I shall add but two other citations. They are from speeches of John Marshall, afterward the most distinguished Chief Justice of the United States--who has certainly never been regarded as holding high views of State rights--in the Virginia Convention of 1788. In the first case, he was speaking of the power of the States over the militia, and is thus reported:

"The State governments did not derive their powers from the General Government; but each government derived its powers from the people, and each was to act according to the powers given it. Would any gentleman deny this?... Could any man say that this power was not retained by the States, as they had not given it away? For (says he) does not a power remain till it is given away? The State Legislatures had power to command and govern their militia before, and have it still, undeniably, unless there be something in this Constitution that takes it away....

"He concluded by observing that the power of governing the militia was not vested in the States by implication, because, being possessed of it antecedently to the adoption of the Government, and not being divested of it by any grant or restriction in the Constitution, they must necessarily be as fully possessed of it as ever they had been, and it could not be said that the States derived any powers from that system, but retained them, though not acknowledged in any part of it."[85]

In the other case, the special subject was the power of the Federal judiciary. Mr. Marshall said, with regard to this: "I hope that no gentleman will think that a State can be called at the bar of the Federal court. Is there no such case at present? Are there not many cases, in which the Legislature of Virginia is a party, and yet the State is not sued? Is it rational to suppose that the sovereign power shall be dragged before a court?"[86]

Authorities to the same effect might be multiplied indefinitely by quotation from nearly all the most eminent statesmen and patriots of that brilliant period. My limits, however, permit me only to refer those in quest of more exhaustive information to the original records, or to the "Republic of Republics," in which will be found a most valuable collection and condensation of the teaching of the fathers on the subject. There was no dissent, at that period, from the interpretation of the Constitution which I have set forth, as given by its authors, except in the objections made by its adversaries. Those objections were refuted and silenced, until revived, long afterward, and presented as the true interpretation, by the school of which Judge Story was the most effective founder.

At an earlier period--but when he had already served for several years in Congress, and had attained the full maturity of his powers--Mr. Webster held the views which were presented in a memorial to Congress of citizens of Boston, December 15, 1819, relative to the admission of Missouri, drawn up and signed by a committee of which he was chairman, and which also included among its members Mr. Josiah Quincy. He speaks of the States as enjoying "the exclusive possession of sovereignty" over their own territory, calls the United States "the American Confederacy," and says, "The only parties to the Constitution, contemplated by it originally, were the thirteen confederated States." And again: "As between the original States, the representation rests on compact and plighted faith; and your memorialists have no wish that that compact should be disturbed, or that plighted faith in the slightest degree violated."

It is satisfactory to know that in the closing year of his life, when looking retrospectively, with judgment undisturbed by any extraneous influence, he uttered views of the Government which must stand the test of severest scrutiny and defy the storms of agitation, for they are founded on the rock of truth. In letters written and addresses delivered during the Administration of Mr. Fillmore, he repeatedly applies to the Constitution the term "compact," which, in 1833, he had so vehemently repudiated. In his speech at Capon Springs, Virginia, in 1851, he says:

"If the South were to violate any part of the Constitution intentionally and systematically, and persist in so doing year after year, and no remedy could be had, would the North be any longer bound by the rest of it? And if the North were, deliberately, habitually, and of fixed purpose, to disregard one part of it, would the South be bound any longer to observe its other obligations?...

"How absurd it is to suppose that, when different parties enter into a compact for certain purposes, either can disregard any one provision, and expect, nevertheless, the other to observe the rest!...

"I have not hesitated to say, and I repeat, that, if the Northern States refuse, willfully and deliberately, to carry into effect that part of the Constitution which respects the restoration of fugitive slaves, and Congress provide no remedy, the South would no longer be bound to observe the compact. A bargain can not be broken on one side, and still bind the other side."[87]

The principles which have been set forth in the foregoing chapters, although they had come to be considered as peculiarly Southern, were not sectional in their origin. In the beginning and earlier years of our history they were cherished as faithfully and guarded as jealously in Massachusetts and New Hampshire as in Virginia or South Carolina. It was in these principles that I was nurtured. I have frankly proclaimed them during my whole life, always contending in the Senate of the United States against what I believed to be the mistaken construction of the Constitution taught by Mr. Webster and his adherents. While I honored the genius of that great man, and held friendly personal relations with him, I considered his doctrines on these points--or rather the doctrines advocated by him during the most conspicuous and influential portions of his public career--to be mischievous, and the more dangerous to the welfare of the country and the liberties of mankind on account of the signal ability and magnificent eloquence with which they were argued.

[Footnote 80: Elliott's "Debates," vol. i, p. 239; "Madison Papers," pp. 1119-1124.]

[Footnote 81: "Madison Papers," p. 1184.]

[Footnote 82: "Federalist," No. lxxxi.]

[Footnote 83: "Federalist," No. lxxxiv.]

[Footnote 84: Ibid., No. lxxxv.]

[Footnote 85: Elliott's "Debates," vol. iii, pp. 389-391.]

[Footnote 86: Elliott's "Debates," vol. iii, p. 503.]

[Footnote 87: Curtis's "Life of Webster," chap. xxxvii, vol. ii, pp. 518, 519.]

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Chapter XI

The Right of Secession.--The Law of Unlimited Partnerships.--The "Perpetual Union" of the Articles of Confederation and the "More Perfect Union" of the Constitution.--The Important Powers conferred upon the Federal Government and the Fundamental Principles of the Compact the same in both Systems.--The Right to resume Grants, when failing to fulfill their Purposes, expressly and distinctly asserted in the Adoption of the Constitution.

The Right of Secession--that subject which, beyond all others, ignorance, prejudice, and political rancor have combined to cloud with misstatements and misapprehensions--is a question easily to be determined in the light of what has already been established with regard to the history and principles of the Constitution. It is not something standing apart by itself--a factious creation, outside of and antagonistic to the Constitution--as might be imagined by one deriving his ideas from the political literature most current of late years. So far from being against the Constitution or incompatible with it, we contend that, if the right to secede is not prohibited to the States, and no power to prevent it expressly delegated to the United States, it remains as reserved to the States or the people, from whom all the powers of the General Government were derived.

The compact between the States which formed the Union was in the nature of a partnership between individuals without limitation of time, and the recognized law of such partnerships is thus stated by an eminent lawyer of Massachusetts in a work intended for popular use:

"If the articles between the partners do not contain an agreement that the partnership shall continue for a specified time, it may be dissolved at the pleasure of either partner. But no partner can exercise this power wantonly and injuriously to the other partners, without making himself responsible for the damage he thus causes. If there be a provision that the partnership shall continue a certain time, this is binding."[88]

We have seen that a number of "sovereign, free, and independent" States, during the war of the Revolution, entered into a partnership with one another, which was not only unlimited in duration, but expressly declared to be a "perpetual union." Yet, when that Union failed to accomplish the purposes for which it was formed, the parties withdrew, separately and independently, one after another, without any question made of their right to do so, and formed a new association. One of the declared objects of this new partnership was to form "a more perfect union." This certainly did not mean more perfect in respect of duration; for the former union had been declared perpetual, and perpetuity admits of no addition. It did not mean that it was to be more indissoluble; for the delegates of the States, in ratifying the former compact of union, had expressed themselves in terms that could scarcely be made more stringent. They then said:

"And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions which, by the said confederation, are submitted to them; and that the articles thereof shall be inviolably observed by the States we respectively represent; and that the Union shall be perpetual."[89]

The formation of a "more perfect union" was accomplished by the organization of a government more complete in its various branches, legislative, executive, and judicial, and by the delegation to this Government of certain additional powers or functions which had previously been exercised by the Governments of the respective States--especially in providing the means of operating directly upon individuals for the enforcement of its legitimately delegated authority. There was no abandonment nor modification of the essential principle of a compact between sovereigns, which applied to the one case as fully as to the other. There was not the slightest intimation of so radical a revolution as the surrender of the sovereignty of the contracting parties would have been. The additional powers conferred upon the Federal Government by the Constitution were merely transfers of some of those possessed by the State governments--not subtractions from the reserved and inalienable sovereignty of the political communities which conferred them. It was merely the institution of a new agent who, however enlarged his powers might be, would still remain subordinate and responsible to the source from which they were derived--that of the sovereign people of each State. It was an amended Union, not a consolidation.

It is a remarkable fact that the very powers of the Federal Government and prohibitions to the States, which are most relied upon by the advocates of centralism as incompatible with State sovereignty, were in force under the old Confederation when the sovereignty of the States was expressly recognized. The General Government had then, as now, the exclusive right and power of determining on peace and war, making treaties and alliances, maintaining an army and navy, granting letters of marque and reprisal, regulating coinage, establishing and controlling the postal service--indeed, nearly all the so-called "characteristic powers of sovereignty" exercised by the Federal Government under the existing Constitution, except the regulation of commerce, and of levying and collecting its revenues directly, instead of through the interposition of the State authorities. The exercise of these first-named powers was prohibited to the States under the old compact, "without the consent of the United States in Congress assembled," but no one has claimed that the Confederation had thereby acquired sovereignty.

Entirely in accord with these truths are the arguments of Mr. Madison in the "Federalist," to show that the great principles of the Constitution are substantially the same as those of the Articles of Confederation. He says:

"I ask, What are these principles? Do they require that, in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed.... Do these principles, in fine, require that the powers of the General Government should be limited, and that, beyond this limit, the States should be left in possession of their sovereignty and independence? We have seen that, in the new Government as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction."

"The truth is," he adds, "that the great principles of the Constitution proposed by the Convention may be considered less as absolutely new, than as the expansion of principles which are found in the Articles of Confederation."[90]

In the papers immediately following, he establishes this position in detail by an analysis of the principal powers delegated to the Federal Government, showing that the spirit of the original instructions to the Convention had been followed in revising "the Federal Constitution" and rendering it "adequate to the exigencies of government and the preservation of the Union."[91]

The present Union owes its very existence to the dissolution, by separate secession of its members, of the former Union, which, as we have thus seen, as to its organic principles, rested upon precisely the same foundation. The right to withdraw from the association results, in either case, from the same principles--principles which, I think, have been established on an impregnable basis of history, reason, law, and precedent.

It is not contended that this right should be resorted to for insufficient cause, or, as the writer already quoted on the law of partnership says, "wantonly and injuriously to the other partners," without responsibility of the seceding party for any damage thus done. No association can be dissolved without a likelihood of the occurrence of incidental questions concerning common property and mutual obligations--questions sometimes of a complex and intricate sort. If a wrong be perpetrated, in such case, it is a matter for determination by the means usually employed among independent and sovereign powers--negotiation, arbitration, or, in the failure of these, by war, with which, unfortunately, Christianity and civilization have not yet been able entirely to dispense. But the suggestion of possible evils does not at all affect the question of right. There is no great principle in the affairs either of individuals or of nations that is not liable to such difficulties in its practical application.

But, we are told, there is no mention made of secession in the Constitution. Mr. Everett says: "The States are not named in it; the word sovereignty does not occur in it; the right of secession is as much ignored in it as the procession of the equinoxes." We have seen how very untenable is the assertion that the States are not named in it, and how much pertinency or significance in the omission of the word "sovereignty." The pertinent question that occurs is, Why was so obvious an attribute of sovereignty not expressly renounced if it was intended to surrender it? It certainly existed; it was not surrendered; therefore it still exists. This would be a more natural and rational conclusion than that it has ceased to exist because it is not mentioned.

The simple truth is, that it would have been a very extraordinary thing to incorporate into the Constitution any express provision for the secession of the States and dissolution of the Union. Its founders undoubtedly desired and hoped that it would be perpetual; against the proposition for power to coerce a State, the argument was that it would be a means, not of preserving, but of destroying, the Union. It was not for them to make arrangements for its termination--a calamity which there was no occasion to provide for in advance. Sufficient for their day was the evil thereof. It is not usual, either in partnerships between men or in treaties between governments, to make provision for a dissolution of the partnership or a termination of the treaty, unless there be some special reason for a limitation of time. Indeed, in treaties, the usual formula includes a declaration of their perpetuity; but in either case the power of the contracting parties, or of any of them, to dissolve the compact, on terms not damaging to the rights of the other parties, is not the less clearly understood. It was not necessary in the Constitution to affirm the right of secession, because it was an attribute of sovereignty, and the States had reserved all which they had not delegated.

The right of the people of the several States to resume the powers delegated by them to the common agency, was not left without positive and ample assertion, even at a period when it had never been denied. The ratification of the Constitution by Virginia has already been quoted, in which the people of that State, through their Convention, did expressly "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."[92]

New York and Rhode Island were no less explicit, both declaring that "the powers of government may be reassumed by the people whenever it shall become necessary to their happiness."[93]

These expressions are not mere obiter dicta, thrown out incidentally, and entitled only to be regarded as an expression of opinion by their authors. Even if only such, they would carry great weight as the deliberately expressed judgment of enlightened contemporaries, but they are more: they are parts of the very acts or ordinances by which these States ratified the Constitution and acceded to the Union, and can not be detached from them. If they are invalid, the ratification itself was invalid, for they are inseparable. By inserting these declarations in their ordinances, Virginia, New York, and Rhode Island, formally, officially, and permanently, declared their interpretation of the Constitution as recognizing the right of secession by the resumption of their grants. By accepting the ratifications with this declaration incorporated, the other States as formally accepted the principle which it asserted.

I am well aware that it has been attempted to construe these declarations concerning the right of the people to reassume their delegations of power--especially in the terms employed by Virginia, "people of the United States"--as having reference to the idea of one people, in mass, or "in the aggregate." But it can scarcely be possible that any candid and intelligent reader, who has carefully considered the evidence already brought to bear on the subject, can need further argument to disabuse his mind of that political fiction. The "people of the United States," from whom the powers of the Federal Government were "derived," could have been no other than the people who ordained and ratified the Constitution; and this, it has been shown beyond the power of denial, was done by the people of each State, severally and independently. No other people were known to the authors of the declarations above quoted. Mr. Madison was a leading member of the Virginia Convention, which made that declaration, as well as of the general Convention that drew up the Constitution. We have seen what his idea of "the people of the United States" was--"not the people as composing one great body, but the people as composing thirteen sovereignties."[94] Mr. Lee, of Westmoreland ("Light-Horse Harry"), in the same Convention, answering Mr. Henry's objection to the expression, "We, the people," said: "It [the Constitution] is now submitted to the people of Virginia. If we do not adopt it, it will be always null and void as to us. Suppose it was found proper for our adoption, and becoming the government of the people of Virginia, by what style should it be done? Ought we not to make use of the name of the people? No other style would be proper."[95] It would certainly be superfluous, after all that has been presented heretofore, to add any further evidence of the meaning that was attached to these expressions by their authors. "The people of the United States" were in their minds the people of Virginia, the people of Massachusetts, and the people of every other State that should agree to unite. They could have meant only that the people of their respective States who had delegated certain powers to the Federal Government, in ratifying the Constitution and acceding to the Union, reserved to themselves the right, in event of the failure of their purposes, to "resume" (or "reassume") those powers by seceding from the same Union.

Finally, the absurdity of the construction attempted to be put upon these expressions will be evident from a very brief analysis. If the assertion of the right of reassumption of their powers was meant for the protection of the whole people--the people in mass--the people "in the aggregate"--of a consolidated republic--against whom or what was it to protect them? By whom were the powers granted to be perverted to the injury or oppression of the whole people? By themselves or by some of the States, all of whom, according to this hypothesis, had been consolidated into one? As no danger could have been apprehended from either of these, it must have been against the Government of the United States that the provision was made; that is to say, the whole people of a republic make this declaration against a Government established by themselves and entirely subject to their own control, under a Constitution which contains provision for its own amendment by this very same "whole people," whenever they may think proper! Is it not a libel upon the statesmen of that generation to attribute to their grave and solemn declarations a meaning so vapid and absurd?

To those who argue that the grants of the Constitution are fatal to the reservation of sovereignty by the States, the Constitution furnishes a conclusive answer in the amendment which was coeval with the adoption of the instrument, and which declares that all powers not delegated to the Government of the Union were reserved to the States or to the people. As sovereignty was not delegated by the States, it was necessarily reserved. It would be superfluous to answer arguments against implied powers of the States; none are claimed by implication, because all not delegated by the States remained with them, and it was only in an abundance of caution that they expressed the right to resume such parts of their unlimited power as was delegated for the purposes enumerated. As there be those who see danger to the perpetuity of the Union in the possession of such power by the States, and insist that our fathers did not intend to bind the States together by a compact no better than "a rope of sand," it may be well to examine their position. From what have dangers to the Union arisen? Have they sprang from too great restriction on the exercise of the granted powers, or from the assumption by the General Government of power claimed by implication? The whole record of our Union answers, from the latter only.

Was this tendency to usurpation caused by the presumption of paramount authority in the General Government, or by the assertion of the right of a State to resume the powers it had delegated? Reasonably and honestly it can not be assigned to the latter. Let it be supposed that the "whole people" had recognized the right of a State of the Union, peaceably and independently, to resume the powers which, peaceably and independently, she had delegated to the Federal Government, would not this have been potent to restrain the General Government from exercising its functions to the injury and oppression of such State? To deny that effect would be to suppose that a dominant majority would be willing to drive a State from the Union. Would the admission of the right of a State to resume the grants it had made, have led to the exercise of that right for light and trivial causes? Surely the evidence furnished by the nations, both ancient and modern, refutes the supposition. In the language of the Declaration of Independence, "All experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed." Would not real grievances be rendered more tolerable by the consciousness of power to remove them; and would not even imaginary wrongs be embittered by the manifestation of a purpose to make them perpetual? To ask these questions is to answer them.

The wise and brave men who had, at much peril and great sacrifice, secured the independence of the States, were as little disposed to surrender the sovereignty of the States as they were anxious to organize a General Government with adequate powers to remedy the defects of the Confederation. The Union they formed was not to destroy the States, but to "secure the blessings of liberty to ourselves and our posterity."

[Footnote 88: Parsons, "Rights of a Citizen," chap. xx, section 3.]

[Footnote 89: Ratification appended to Articles of Confederation. (See Elliott's "Debates," vol. i, p. 113.)]

[Footnote 90: "Federalist," No. xl.]

[Footnote 91: Ibid., Nos. xli-xliv.]

[Footnote 92: See Elliott's "Debates," vol. i, p. 360.]

[Footnote 93: Ibid., pp. 361, 369.]

[Footnote 94: Elliott's "Debates," vol. iii, p. 114.]

[Footnote 95: Ibid., p. 71.]

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Chapter XII

Coercion the Alternative to Secession.--Repudiation of it by the Constitution and the Fathers of the Constitutional Era.--Difference between Mr. Webster and Mr. Hamilton.

The alternative to secession is coercion. That is to say, if no such right as that of secession exists--if it is forbidden or precluded by the Constitution--then it is a wrong; and, by a well settled principle of public law, for every wrong there must be a remedy, which in this case must be the application of force to the State attempting to withdraw from the Union.

Early in the session of the Convention which formed the Constitution, it was proposed to confer upon Congress the power "to call forth the force of the Union against any member of the Union failing to fulfill its duty under the articles thereof." When this proposition came to be considered, Mr. Madison observed that "a union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound. He hoped that such a system would be framed as might render this recourse unnecessary, and moved that the clause be postponed." This motion was adopted nem. con., and the proposition was never again revived.[96] Again, on a subsequent occasion, speaking of an appeal to force, Mr. Madison said: "Was such a remedy eligible? Was it practicable?... Any government for the United States, formed on the supposed practicability of using force against the unconstitutional proceedings of the States, would prove as visionary and fallacious as the government of Congress."[97] Every proposition looking in any way to the same or a similar object was promptly rejected by the convention. George Mason, of Virginia, said of such a proposition: "Will not the citizens of the invaded State assist one another, until they rise as one man and shake off the Union altogether?"[98]

Oliver Ellsworth, in the ratifying Convention of Connecticut, said: "This Constitution does not attempt to coerce sovereign bodies, States, in their political capacity. No coercion is applicable to such bodies but that of an armed force. If we should attempt to execute the laws of the Union by sending an armed force against a delinquent State, it would involve the good and bad, the innocent and guilty, in the same calamity."[99]

Mr. Hamilton, in the Convention of New York, said: "To coerce the States is one of the maddest projects that was ever devised.... What picture does this idea present to our view? A complying State at war with a non-complying State: Congress marching the troops of one State into the bosom of another ... Here is a nation at war with itself. Can any reasonable man be well disposed toward a government which makes war and carnage the only means of supporting itself--a government that can exist only by the sword?... But can we believe that one State will ever suffer itself to be used as an instrument of coercion? The thing is a dream--it is impossible."[100]

Unhappily, our generation has seen that, in the decay of the principles and feelings which animated the hearts of all patriots in that day, this thing, like many others then regarded as impossible dreams, has been only too feasible, and that States have permitted themselves to be used as instruments, not merely for the coercion, but for the destruction of the freedom and independence of their sister States.

Edmund Randolph, Governor of Virginia, although the mover of the original proposition to authorize the employment of the forces of the Union against a delinquent member, which had been so signally defeated in the Federal Convention, afterward, in the Virginia Convention, made an eloquent protest against the idea of the employment of force against a State. "What species of military coercion," said he, "could the General Government adopt for the enforcement of obedience to its demands? Either an army sent into the heart of a delinquent State, or blocking up its ports. Have we lived to this, then, that, in order to suppress and exclude tyranny, it is necessary to render the most affectionate friends the most bitter enemies, set the father against the son, and make the brother slay the brother? Is this the happy expedient that is to preserve liberty? Will it not destroy it? If an army be once introduced to force us, if once marched into Virginia, figure to yourselves what the dreadful consequence will be: the most lamentable civil war must ensue."[101]

We have seen already how vehemently the idea of even judicial coercion was repudiated by Hamilton, Marshall, and others. The suggestion of military coercion was uniformly treated, as in the above extracts, with still more abhorrence. No principle was more fully and firmly settled on the highest authority than that, under our system, there could be no coercion of a State.

Mr. Webster, in his elaborate speech of February 16, 1833, arguing throughout against the sovereignty of the States, and in the course of his argument sadly confounding the ideas of the Federal Constitution and the Federal Government, as he confounds the sovereign people of the States with the State governments, says: "The States can not omit to appoint Senators and electors. It is not a matter resting in State discretion or State pleasure.... No member of a State Legislature can refuse to proceed, at the proper time, to elect Senators to Congress, or to provide for the choice of electors of President and Vice-President, any more than the members can refuse, when the appointed day arrives, to meet the members of the other House, to count the votes for those officers and ascertain who are chosen."[102] This was before the invention in 1877 of an electoral commission to relieve Congress of its constitutional duty to count the vote. Mr. Hamilton, on the contrary, fresh from the work of forming the Constitution, and familiar with its principles and purposes, said: "It is certainly true that the State Legislatures, by forbearing the appointment of Senators, may destroy the national Government."[103]

It is unnecessary to discuss the particular question on which these two great authorities are thus directly at issue. I do not contend that the State Legislatures, of their own will, have a right to forego the performance of any Federal duty imposed upon them by the Constitution. But there is a power beyond and above that of either the Federal or State governments--the power of the people of the State, who ordained and established the Constitution, as far as it applies to themselves, reserving, as I think has been demonstrated, the right to reassume the grants of power therein made, when they deem it necessary for their safety or welfare to do so. At the behest of this power, it certainly becomes not only the right, but the duty, of their State Legislature to refrain from any action implying adherence to the Union, or partnership, from which the sovereign has withdrawn.

[Footnote 96: "Madison Papers," pp. 732, 761.]

[Footnote 97: Ibid., p. 822.]

[Footnote 98: Ibid., p. 914.]

[Footnote 99: Elliott's "Debates," vol. ii, p. 199.]

[Footnote 100: Ibid., pp. 232, 233.]

[Footnote 101: Elliott's "Debates," vol. iii, p. 117.]

[Footnote 102: "Congressional Debates," vol. ix, Part I, p. 566.]

[Footnote 103: "Federalist," No. lix.]

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