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The Rise and Fall of the Confederate Government
by Jefferson Davis
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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.]



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.]



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 Caesars, 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 Etats 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.]



CHAPTER 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.]



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.]



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 "AEneid" 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.]



CHAPTER 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.

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