There was scarcely a statesman of that period who did not leave on record expressions of the same sort. But why multiply citations? It is very evident that the "men of those days" entertained very different views of sovereignty from those set forth by the "new lights" of our day. Far from considering it a term of feudal origin, "purely inapplicable to the American system," they seem to have regarded it as a very vital principle in that system, and of necessity belonging to the several States—and I do not find a single instance in which they applied it to any political organization, except the States.
Their ideas were in entire accord with those of Vattel, who, in his chapter "Of Nations or Sovereign States," writes, "Every nation that governs itself, under what form soever, without any dependence on foreign power, is a sovereign state."
In another part of the same chapter he gives a lucid statement of the nature of a confederate republic, such as ours was designed to be. He says:
"Several sovereign and independent states may unite themselves together by a perpetual confederacy, without each in particular ceasing to be a perfect state. They will form together a federal republic: the deliberations in common will offer no violence to the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfill the engagements into which he has very willingly entered."
What this celebrated author means here by a person, is explained by a subsequent passage: "The law of nations is the law of sovereigns; states free and independent are moral persons."
[Footnote 60: "Principes du Droit Politique," chap. v, section I; also, chap. vii, section 1.]
[Footnote 61: Ibid., chap. vii, section 12.]
[Footnote 62: "Rebellion Record," vol. i, Documents, p. 211.]
[Footnote 63: Elliott's "Debates," vol. iii, p. 114, edition of 1836.]
[Footnote 64: "Federalist," No. xl.]
[Footnote 65: Ibid, No. lxxxi.]
[Footnote 66: See Elliott's "Debates," vol. v, p. 266.]
[Footnote 67: Ibid., vol. ii, p. 443.]
[Footnote 68: See "Life of Gouverneur Morris," vol. iii, p. 193.]
[Footnote 69: See "Writings of John Adams," vol. vii, letter of Roger Sherman.]
[Footnote 70: See Eliott's "Debates," vol. ii, p. 197.]
[Footnote 71: "Law of Nations," Book I, chap. i, section 4.]
[Footnote 72: Ibid., section 10.]
[Footnote 73: Ibid., section 12.]
The same Subject continued.—The Tenth Amendment.—Fallacies exposed.—"Constitution," "Government," and "People" distinguished from each other.—Theories refuted by Facts.—Characteristics of Sovereignty.—Sovereignty identified.—Never thrown away.
If any lingering doubt could have existed as to the reservation of their entire sovereignty by the people of the respective States, when they organized the Federal Union, it would have been removed by the adoption of the tenth amendment to the Constitution, which was not only one of the amendments proposed by various States when ratifying that instrument, but the particular one in which they substantially agreed, and upon which they most urgently insisted. Indeed, it is quite certain that the Constitution would never have received the assent and ratification of Massachusetts, New Hampshire, New York, North Carolina, and perhaps other States, but for a well-grounded assurance that the substance of this amendment would be adopted as soon as the requisite formalities could be complied with. That amendment is in these words:
"The powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively, or to the people."
The full meaning of this article may not be as clear to us as it was to the men of that period, on account of the confusion of ideas by which the term "people"—plain enough to them—has since been obscured, and also the ambiguity attendant upon the use of the little conjunction or, which has been said to be the most equivocal word in our language, and for that reason has been excluded from indictments in the English courts. The true intent and meaning of the provision, however, may be ascertained from an examination and comparison of the terms in which it was expressed by the various States which proposed it, and whose ideas it was intended to embody.
Massachusetts and New Hampshire, in their ordinances of ratification, expressing the opinion "that certain amendments and alterations in the said Constitution would remove the fears and quiet the apprehensions of many of the good people of this Commonwealth [State (New Hampshire)], and more effectually guard against an undue administration of the Federal Government," each recommended several such amendments, putting this at the head in the following form:
"That it be explicitly declared that all powers not expressly delegated by the aforesaid Constitution are reserved to the several States, to be by them exercised."
Of course, those stanch republican communities meant the people of the States—not their governments, as something distinct from their people.
New York expressed herself as follows:
"That the powers of government may be reassumed by the people whenever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the people of the several States, or to their respective State governments, to whom they may have granted the same; and that those clauses in the said Constitution, which declare that Congress shall not have or exercise certain powers, do not imply that Congress is entitled to any powers not given by the said Constitution; but such clauses are to be construed either as exceptions to certain specified powers or as inserted merely for greater caution."
South Carolina expressed the idea thus:
"This Convention doth also declare that no section or paragraph of the said Constitution warrants a construction that the States do not retain every power not expressly relinquished by them and vested in the General Government of the Union."
North Carolina proposed it in these terms:
"Each State in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the United States or to the departments of the General Government."
Rhode Island gave in her long-withheld assent to the Constitution, "in full confidence" that certain proposed amendments would be adopted, the first of which was expressed in these words:
"That Congress shall guarantee to each State its SOVEREIGNTY, freedom, and independence, and every power, jurisdiction, and right, which is not by this Constitution expressly delegated to the United States."
This was in May, 1790, when nearly three years had been given to discussion and explanation of the new Government by its founders and others, when it had been in actual operation for more than a year, and when there was every advantage for a clear understanding of its nature and principles. Under such circumstances, and in the "full confidence" that this language expressed its meaning and intent, the people of Rhode Island signified their "accession" to the "Confederate Republic" of the States already united.
No objection was made from any quarter to the principle asserted in these various forms; or to the amendment in which it was finally expressed, although many thought it unnecessary, as being merely declaratory of what would have been sufficiently obvious without it—that the functions of the Government of the United States were strictly limited to the exercise of such powers as were expressly delegated, and that the people of the several States retained all others.
Is it compatible with reason to suppose that people so chary of the delegation of specific powers or functions could have meant to surrender or transfer the very basis and origin of all power—their inherent sovereignty—and this, not by express grant, but by implication?
Mr. Everett, following, whether consciously or not, in the line of Mr. Webster's ill-considered objection to the term "compact," takes exception to the sovereignty of the States on the ground that "the word 'sovereignty' does not occur" in the Constitution. He admits that the States were sovereign under the Articles of Confederation. How could they relinquish or be deprived of their sovereignty without even a mention of it—when the tenth amendment confronts us with the declaration that nothing was surrendered by implication—that everything was reserved unless expressly delegated to the United States or prohibited to the States? Here is an attribute which they certainly possessed—which nobody denies, or can deny, that they did possess—and of which Mr. Everett says no mention is made in the Constitution. In what conceivable way, then, was it lost or alienated?
Much has been said of the "prohibition" of the exercise by the States of certain functions of sovereignty; such as, making treaties, declaring war, coining money, etc. This is only a part of the general compact, by which the contracting parties covenant, one with another, to abstain from the separate exercise of certain powers, which they agree to intrust to the management and control of the union or general agency of the parties associated. It is not a prohibition imposed upon them from without, or from above, by any external or superior power, but is self-imposed by their free consent. The case is strictly analogous to that of individuals forming a mercantile or manufacturing copartnership, who voluntarily agree to refrain, as individuals, from engaging in other pursuits or speculations, from lending their individual credit, or from the exercise of any other right of a citizen, which they may think proper to subject to the consent, or intrust to the management of the firm.
The prohibitory clauses of the Constitution referred to are not at all a denial of the full sovereignty of the States, but are merely an agreement among them to exercise certain powers of sovereignty in concert, and not separately and apart.
There is one other provision of the Constitution, which is generally adduced by the friends of centralism as antagonistic to State sovereignty. This is found in the second clause of the sixth article, as follows:
"This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."
This enunciation of a principle, which, even if it had not been expressly declared, would have been a necessary deduction from the acceptance of the Constitution itself, has been magnified and perverted into a meaning and purpose entirely foreign to that which plain interpretation is sufficient to discern. Mr. Motley thus dilates on the subject:
"Could language be more imperial? Could the claim to State 'sovereignty' be more completely disposed of at a word? How can that be sovereign, acknowledging no superior, supreme, which has voluntarily accepted a supreme law from something which it acknowledges as superior?"
The mistake which Mr. Motley—like other writers of the same school—makes is one which is disposed of by a very simple correction. The States, which ordained and established the Constitution, accepted nothing besides what they themselves prescribed. They acknowledged no superior. The supremacy was both in degree and extent only that which was delegated by the States to their common agent.
There are some other considerations which may conduce to a clearer understanding of this supremacy of the Constitution and the laws made in pursuance thereof:
1. In the first place, it must be remembered that, when the Federal Constitution was formed, each then existing State already had its own Constitution and code of statute laws. It was, no doubt, primarily with reference to these that the provision was inserted, and not in the expectation of future conflicts or discrepancies. It is in this light alone that Mr. Madison considers it in explaining and vindicating it in the "Federalist."
2. Again, it is to be observed that the supremacy accorded to the general laws of the United States is expressly limited to those enacted in conformity with the Constitution, or, to use the exact language, "made in pursuance thereof." Mr. Hamilton, in another chapter of the "Federalist," calls particular attention to this, saying (and the italics are all his own) "that the laws of the Confederacy, as to the enumerated and legitimate objects of its jurisdiction, will become the supreme law of the land," and that the State functionaries will cooeperate in their observance and enforcement with the General Government, "as far as its just and constitutional authority extends."
3. In the third place, it is not the Government of the United States that is declared to be supreme, but the Constitution and the laws and treaties made in accordance with it. The proposition was made in the Convention to organize a government consisting of "supreme legislative, executive, and judicial powers," but it was not adopted. Its deliberate rejection is much more significant and conclusive than if it had never been proposed. Correction of so gross an error as that of confounding the Government with the Constitution ought to be superfluous, but so crude and confused are the ideas which have been propagated on the subject, that no misconception seems to be too absurd to be possible. Thus, it has not been uncommon, of late years, to hear, even in the highest places, the oath to support the Constitution, which is taken by both State and Federal officers, spoken of as an oath "to support the Government"—an obligation never imposed upon any one in this country, and which the men who made the Constitution, with their recent reminiscences of the Revolution, the battles of which they had fought with halters around their necks, would have been the last to prescribe. Could any assertion be less credible than that they proceeded to institute another supreme government which it would be treason to resist?
This confusion of ideas pervades the treatment of the whole subject of sovereignty. Mr. Webster has said, and very justly so far as these United States are concerned: "The sovereignty of government is an idea belonging to the other side of the Atlantic. No such thing is known in North America. Our governments are all limited. In Europe sovereignty is of feudal origin, and imports no more than the state of the sovereign. It comprises his rights, duties, exemptions, prerogatives, and powers. But with us all power is with the people. They alone are sovereign, and they erect what governments they please, and confer on them such powers as they please. None of these governments are sovereign, in the European sense of the word, all being restrained by written constitutions."
But the same intellect, which can so clearly discern and so lucidly define the general proposition, seems to be covered by a cloud of thick darkness when it comes to apply it to the particular case in issue. Thus, a little afterward, we have the following:
"There is no language in the whole Constitution applicable to a confederation of States. If the States be parties, as States, what are their rights, and what their respective covenants and stipulations? and where are their rights, covenants, and stipulations expressed? In the Articles of Confederation they did make promises, and did enter into engagements, and did plight the faith of each State for their fulfillment; but in the Constitution there is nothing of that kind. The reason is that, in the Constitution, it is the people who speak and not the States. The people ordain the Constitution, and therein address themselves to the States and to the Legislatures of the States in the language of injunction and prohibition."
It is surprising that such inconsistent ideas should proceed from a source so eminent. Its author falls into the very error which he had just before so distinctly pointed out, in confounding the people of the States with their governments. In the vehemence of his hostility to State sovereignty, he seems—as all of his disciples seem—unable even to comprehend that it means the sovereignty, not of State governments, but of people who make them. With minds preoccupied by the unreal idea of one great people of a consolidated nation, these gentlemen are blinded to the plain and primary truth that the only way in which the people ordained the Constitution was as the people of States. When Mr. Webster says that "in the Constitution it is the people who speak, and not the States," he says what is untenable. The States are the people. The people do not speak, never have spoken, and never can speak, in their sovereign capacity (without a subversion of our whole system), otherwise than as the people of States.
There are but two modes of expressing their sovereign will known to the people of this country. One is by direct vote—the mode adopted by Rhode Island in 1788, when she rejected the Constitution. The other is the method, more generally pursued, of acting by means of conventions of delegates elected expressly as representatives of the sovereignty of the people. Now, it is not a matter of opinion or theory or speculation, but a plain, undeniable, historical fact, that there never has been any act or expression of sovereignty in either of these modes by that imaginary community, "the people of the United States in the aggregate." Usurpations of power by the Government of the United States, there may have been, and may be again, but there has never been either a sovereign convention or a direct vote of the "whole people" of the United States to demonstrate its existence as a corporate unit. Every exercise of sovereignty by any of the people of this country that has actually taken place has been by the people of States as States. In the face of this fact, is it not the merest self-stultification to admit the sovereignty of the people and deny it to the States, in which alone they have community existence?
This subject is one of such vital importance to a right understanding of the events which this work is designed to record and explain, that it can not be dismissed without an effort in the way of recapitulation and conclusion, to make it clear beyond the possibility of misconception.
According to the American theory, every individual is endowed with certain unalienable rights, among which are "life, liberty, and the pursuit of happiness." He is entitled to all the freedom, in these and in other respects, that is consistent with the safety and the rights of others and the weal of the community, but political sovereignty, which is the source and origin of all the powers of government—legislative, executive, and judicial—belongs to, and inheres in, the people of an organized political community. It is an attribute of the whole people of such a community. It includes the power and necessarily the duty of protecting the rights and redressing the wrongs of individuals, of punishing crimes, enforcing contracts, prescribing rules for the transfer of property and the succession of estates, making treaties with foreign powers, levying taxes, etc. The enumeration of particulars might be extended, but these will suffice as illustrations.
These powers are of course exercised through the agency of governments, but the governments are only agents of the sovereign—responsible to it, and subject to its control. This sovereign—the people, in the aggregate, of each political community—delegates to the government the exercise of such powers, or functions, as it thinks proper, but in an American republic never transfers or surrenders sovereignty. That remains, unalienated and unimpaired. It is by virtue of this sovereignty alone that the Government, its authorized agent, commands the obedience of the individual citizen, to the extent of its derivative, dependent, and delegated authority. The ALLEGIANCE of the citizen is due to the sovereign alone.
Thus far, I think, all will agree. No American statesman or publicist would venture to dispute it. Notwithstanding the inconsiderate or ill-considered expressions thrown out by some persons about the unity of the American people from the beginning, no respectable authority has ever had the hardihood to deny that, before the adoption of the Federal Constitution, the only sovereign political community was the people of the State—the people of each State. The ordinary exercise of what are generally termed the powers of sovereignty was by and through their respective governments; and, when they formed a confederation, a portion of those powers was intrusted to the General Government, or agency. Under the Confederation, the Congress of the United States represented the collective power of the States; but the people of each State alone possessed sovereignty, and consequently were entitled to the allegiance of the citizen.
When the Articles of Confederation were amended, when the new Constitution was substituted in their place and the General Government reorganized, its structure was changed, additional powers were conferred upon it, and thereby subtracted from the powers theretofore exercised by the State governments; but the seat of sovereignty—the source of all those delegated and dependent powers—was not disturbed. There was a new Government or an amended Government—it is entirely immaterial in which of these lights we consider it—but no new PEOPLE was created or constituted. The people, in whom alone sovereignty inheres, remained just as they had been before. The only change was in the form, structure, and relations of their governmental agencies.
No doubt, the States—the people of the States—if they had been so disposed, might have merged themselves into one great consolidated State, retaining their geographical boundaries merely as matters of convenience. But such a merger must have been distinctly and formally stated, not left to deduction or implication.
Men do not alienate even an estate, without positive and express terms and stipulations. But in this case not only was there no express transfer—no formal surrender—of the preexisting sovereignty, but it was expressly provided that nothing should be understood as even delegated—that everything was reserved, unless granted in express terms. The monstrous conception of the creation of a new people, invested with the whole or a great part of the sovereignty which had previously belonged to the people of each State, has not a syllable to sustain it in the Constitution, but is built up entirely upon the palpable misconstruction of a single expression in the preamble.
In denying that there is any such collective unit as the people of the United States in the aggregate, of course I am not to be understood as denying that there is such a political organization as the United States, or that there exists, with large and distinct powers, a Government of the United States; but it is claimed that the Union, as its name implies, is constituted of States. As a British author, referring to the old Teutonic system, has expressed the same idea, the States are the integers, the United States the multiple which results from them. The Government of the United States derives its existence from the same source, and exercises its functions by the will of the same sovereignty that creates and confers authority upon the State governments. The people of each State are, in either case, the source. The only difference is that, in the creation of the State governments, each sovereign acted alone; in that of the Federal Government, they acted in cooeperation with the others. Neither the whole nor any part of their sovereignty has been surrendered to either Government.
To whom, in fine, could the States have surrendered their sovereignty? Not to the mass of the people inhabiting the territory possessed by all the States, for there was no such community in existence, and they took no measures for the organization of such a community. If they had intended to do so, the very style, "United States," would have been a palpable misnomer, nor would treason have been defined as levying war against them. Could it have been transferred to the Government of the Union? Clearly not, in accordance with the ideas and principles of those who made the Declaration of Independence, adopted the Articles of Confederation, and established the Constitution of the United States; for in each and all of these the corner-stone is the inherent and inalienable sovereignty of the people. To have transferred sovereignty from the people to a Government would have been to have fought the battles of the Revolution in vain—not for the freedom and independence of the States, but for a mere change of masters. Such a thought or purpose could not have been in the heads or hearts of those who molded the Union, and could have found lodgment only when the ebbing tide of patriotism and fraternity had swept away the landmarks which they erected who sought by the compact of union to secure and perpetuate the liberties then possessed. The men who had won at great cost the independence of their respective States were deeply impressed with the value of union, but they could never have consented, like "the base Judean," to fling away the priceless pearl of State sovereignty for any possible alliance.
[Footnote 74: "Rebellion Record," vol. i, Documents, p. 213.]
[Footnote 75: "Federalist," No. xliv.]
[Footnote 76: "Federalist," No. xxvii.]
[Footnote 77: "Congressional Debates," vol. ix, Part I, p. 565.]
[Footnote 78: Ibid., p. 566.]
[Footnote 79: Sir Francis Palgrave, quoted by Mr. Calhoun, "Congressional Debates," vol. ix, Part I, p. 541.]
A Recapitulation.—Remarkable Propositions of Mr. Gouverneur Morris in the Convention of 1787, and their Fate.—Further Testimony.—Hamilton, Madison, Washington, Marshall, etc.—Later Theories.—Mr. Webster: his Views at Various Periods.—Speech at Capon Springs.—State Rights not a Sectional Theory.
Looking back for a moment at the ground over which we have gone, I think it may be fairly asserted that the following propositions have been clearly and fully established:
1. That the States of which the American Union was formed, from the moment when they emerged from their colonial or provincial condition, became severally sovereign, free, and independent States—not one State, or nation.
2. That the union formed under the Articles of Confederation was a compact between the States, in which these attributes of "sovereignty, freedom, and independence," were expressly asserted and guaranteed.
3. That, in forming the "more perfect union" of the Constitution, afterward adopted, the same contracting powers formed an amended compact, without any surrender of these attributes of sovereignty, freedom, and independence, either expressed or implied: on the contrary, that, by the tenth amendment to the Constitution, limiting the power of the Government to its express grants, they distinctly guarded against the presumption of a surrender of anything by implication.
4. That political sovereignty resides, neither in individual citizens, nor in unorganized masses, nor in fractional subdivisions of a community, but in the people of an organized political body.
5. That no "republican form of government," in the sense in which that expression is used in the Constitution, and was generally understood by the founders of the Union—whether it be the government of a State or of a confederation of States—is possessed of any sovereignty whatever, but merely exercises certain powers delegated by the sovereign authority of the people, and subject to recall and reassumption by the same authority that conferred them.
6. That the "people" who organized the first confederation, the people who dissolved it, the people who ordained and established the Constitution which succeeded it, the only people, in fine, known or referred to in the phraseology of that period—whether the term was used collectively or distributively—were the people of the respective States, each acting separately and with absolute independence of the others.
7. That, in forming and adopting the Constitution, the States, or the people of the States—terms which, when used with reference to acts performed in a sovereign capacity, are precisely equivalent to each other—formed a new Government, but no new people; and that, consequently, no new sovereignty was created—for sovereignty in an American republic can belong only to a people, never to a government—and that the Federal Government is entitled to exercise only the powers delegated to it by the people of the respective States.
8. That the term "people," in the preamble to the Constitution and in the tenth amendment, is used distributively; that the only "people of the United States" known to the Constitution are the people of each State in the Union; that no such political community or corporate unit as one people of the United States then existed, has ever been organized, or yet exists; and that no political action by the people of the United States in the aggregate has ever taken place, or ever can take place, under the Constitution.
The fictitious idea of one people of the United States, contradicted in the last paragraph, has been so impressed upon the popular mind by false teaching, by careless and vicious phraseology, and by the ever-present spectacle of a great Government, with its army and navy, its custom-houses and post-offices, its multitude of office-holders, and the splendid prizes which it offers to political ambition, that the tearing away of these illusions and presentation of the original fabric, which they have overgrown and hidden from view, have no doubt been unwelcome, distasteful, and even repellent to some of my readers. The artificial splendor which makes the deception attractive is even employed as an argument to prove its reality.
The glitter of the powers delegated to the agent serves to obscure the perception of the sovereign power of the principal by whom they are conferred, as, by the unpracticed eye, the showy costume and conspicuous functions of the drum-major are mistaken for emblems of chieftaincy—while the misuse or ambiguous use of the term "Union" and its congeners contributes to increase the confusion.
So much the more need for insisting upon the elementary truths which have been obscured by these specious sophistries. The reader really desirous of ascertaining truth is, therefore, again cautioned against confounding two ideas so essentially distinct as that of government, which is derivative, dependent, and subordinate, with that of the people, as an organized political community, which is sovereign, without any other than self-imposed limitations, and such as proceed from the general principles of the personal rights of man.
It has been said, in a foregoing chapter, that the authors of the Constitution could scarcely have anticipated the idea of such a community as the people of the United States in one mass. Perhaps this expression needs some little qualification, for there is rarely a fallacy, however stupendous, that is wholly original. A careful examination of the records of the Convention of 1787 exhibits one or perhaps two instances of such a suggestion—both by the same person—and the result in each case is strikingly significant.
The original proposition made concerning the office of President of the United States contemplated his election by the Congress, or, as it was termed by the proposer, "the national Legislature." On the 17th of July, this proposition being under consideration, Mr. Gouverneur Morris moved that the words "national Legislature" be stricken out, and "citizens of the United States" inserted. The proposition was supported by Mr. James Wilson—both of these gentlemen being delegates from Pennsylvania, and both among the most earnest advocates of centralism in the Convention.
Now, it is not at all certain that Mr. Morris had in view an election by the citizens of the United States "in the aggregate," voting as one people. The language of his proposition is entirely consistent with the idea of as election by the citizens of each State, voting separately and independently, though it is ambiguous, and may admit of the other construction. But this is immaterial. The proposition was submitted to a vote, and received the approval of only one State—Pennsylvania, of which Mr. Morris and Mr. Wilson were both representatives. Nine States voted against it.
Six days afterward (July 23d), in a discussion of the proposed ratification of the Constitution by Conventions of the people of each State, Mr. Gouverneur Morris—as we learn from Mr. Madison—"moved that the reference of the plan [i.e., of the proposed Constitution] be made to one General Convention, chosen and authorized by the people, to consider, amend, and establish the same."
Here the issue seems to have been more distinctly made between the two ideas of people of the States and one people in the aggregate. The fate of the latter is briefly recorded in the two words, "not seconded." Mr. Morris was a man of distinguished ability, great personal influence, and undoubted patriotism, but, out of all that assemblage—comprising, as it did, such admitted friends of centralism as Hamilton, King, Wilson, Randolph, Pinckney, and others—there was not one to sustain him in the proposition to incorporate into the Constitution that theory which now predominates, the theory on which was waged the late bloody war, which was called a "war for the Union." It failed for want of a second, and does not even appear in the official journal of the Convention. The very fact that such a suggestion was made would be unknown to us but for the record kept by Mr. Madison.
The extracts which have been given, in treating of special branches of the subject, from the writings and speeches of the framers of the Constitution and other statesmen of that period, afford ample proof of their entire and almost unanimous accord with the principles which have been established on the authority of the Constitution itself, the acts of ratification by the several States, and other attestations of the highest authority and validity. I am well aware that isolated expressions may be found in the reports of debates on the General and State Conventions and other public bodies, indicating the existence of individual opinions seemingly inconsistent with these principles; that loose and confused ideas were sometimes expressed with regard to sovereignty, the relations between governments and people, and kindred subjects; and that, while the plan of the Constitution was under discussion, and before it was definitely reduced to its present shape, there were earnest advocates in the Convention of a more consolidated system, with a stronger central government. But these expressions of individual opinion only prove the existence of a small minority of dissentients from the principles generally entertained, and which finally prevailed in the formation of the Constitution. None of these ever avowed such extravagances of doctrine as are promulgated in this generation. No statesman of that day would have ventured to risk his reputation by construing an obligation to support the Constitution as an obligation to adhere to the Federal Government—a construction which would have insured the sweeping away of any plan of union embodying it, by a tempest of popular indignation from every quarter of the country. None of them suggested such an idea as that of the amalgamation of the people of the States into one consolidated mass—unless it was suggested by Mr. Gouverneur Morris in the proposition above referred to, in which he stood alone among the delegates of twelve sovereign States assembled in convention.
As to the features of centralism, or nationalism, which they did advocate, all the ability of this little minority of really gifted men failed to secure the incorporation of any one of them into the Constitution, or to obtain their recognition by any of the ratifying States. On the contrary, the very men who had been the leading advocates of such theories, on failing to secure their adoption, loyally accepted the result, and became the ablest and most efficient supporters of the principles which had prevailed. Thus, Mr. Hamilton, who had favored the plan of a President and Senate, both elected to hold office for life (or during good behavior), with a veto power in Congress on the action of the State Legislatures, became, through the "Federalist," in conjunction with his associates, Mr. Madison and Mr. Jay, the most distinguished expounder and advocate of the Constitution, as then proposed and afterward ratified, with all its Federal and State-rights features. In the ninth number of that remarkable series of political essays, he quotes, adopts, and applies to the then proposed Constitution, Montesquieu's description of a "CONFEDERATE REPUBLIC," a term which he (Hamilton) repeatedly employs.
In the eighty-first number of the same series, replying to apprehensions expressed by some that a State might be brought before the Federal courts to answer as defendant in suits instituted against her, he repels the idea in these plain and conclusive terms. The italics are my own:
"It is inherent in the nature of sovereignty not to be amenable to the suit of any individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the Convention, it will remain with the States, and the danger intimated must be merely ideal.... The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident that it could not be done without waging war against the contracting State; and to ascribe to the Federal courts, by mere implication, and in destruction of a preexisting right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarranted."
This extract is very significant, clearly showing that Mr. Hamilton assumed as undisputed propositions, in the first place, that the State was the "SOVEREIGN"; secondly, that this sovereignty could not be alienated, unless by express surrender; thirdly, that no such surrender had been made; and, fourthly, that the idea of applying coercion to a State, even to enforce the fulfillment of a duty, would be equivalent to waging war against a State—it was "altogether forced and unwarrantable."
In a subsequent number, Mr. Hamilton, replying to the objection that the Constitution contains no bill or declaration of rights, argues that it was entirely unnecessary, because in reality the people—that is, of course, the people, respectively, of the several States, who were the only people known to the Constitution or to the country—had surrendered nothing of their inherent sovereignty, but retained it unimpaired. He says: "Here, in strictness, the people surrender nothing; and, as they retain everything, they have no need of particular reservations." And again: "I go further, and affirm that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed Constitution, but would be absolutely dangerous. They would contain various exceptions to powers not granted, and on this very account would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done, which there is no power to do?" Could language be more clear or more complete in vindication of the principles laid down in this work? Mr. Hamilton declares, in effect, that the grants to the Federal Government in the Constitution are not surrenders, but delegations of power by the people of the States; that sovereignty remains intact where it was before; and that the delegations of power were strictly limited to those expressly granted—in this, merely anticipating the tenth amendment, afterward adopted.
Finally, in the concluding article of the "Federalist," he bears emphatic testimony to the same principles, in the remark that "every Constitution for the United States must inevitably consist of a great variety of particulars, in which thirteen independent States are to be accommodated in their interests or opinions of interest.... Hence the necessity of molding and arranging all the particulars, which are to compose the whole, in such a manner as to satisfy all the parties to the compact." There is no intimation here, or anywhere else, of the existence of any such idea as that of the aggregated people of one great consolidated state. It is an incidental enunciation of the same truth soon afterward asserted by Madison in the Virginia Convention—that the people who ordained and established the Constitution were "not the people as composing one great body, but the people as composing thirteen sovereignties".
Mr. Madison, in the Philadelphia Convention, had at first held views of the sort of government which it was desirable to organize, similar to those of Mr. Hamilton, though more moderate in extent. He, too, however, cordially conformed to the modifications in them made by his colleagues, and was no less zealous and eminent in defending and expounding the Constitution as finally adopted. His interpretation of its fundamental principles is so fully shown in the extracts which have already been given from his contributions to the "Federalist" and speeches in the Virginia Convention, that it would be superfluous to make any additional citation from them.
The evidence of Hamilton and Madison—two of the most eminent of the authors of the Constitution, and the two preeminent contemporary expounders of its meaning—is the most valuable that could be offered for its interpretation. That of all the other statesmen of the period only tends to confirm the same conclusions. The illustrious Washington, who presided over the Philadelphia Convention, in his correspondence, repeatedly refers to the proposed Union as a "Confederacy" of States, or a "confederated Government," and to the several States as "acceding," or signifying their "accession," to it, in ratifying the Constitution. He refers to the Constitution itself as "a compact or treaty," and classifies it among compacts or treaties between "men, bodies of men, or countries." Writing to Count Rochambeau, on January 8, 1788, he says that the proposed Constitution "is to be submitted to conventions chosen by the people in the several States, and by them approved or rejected"—showing what he understood by "the people of the United States," who were to ordain and establish it. These same people—that is, "the people of the several States"—he says, in a letter to Lafayette, April 28, 1788, "retain everything they do not, by express terms, give up." In a letter written to Benjamin Lincoln, October 26, 1788, he refers to the expectation that North Carolina will accede to the Union, and adds, "Whoever shall be found to enjoy the confidence of the States so far as to be elected Vice-President," etc.—showing that in the "confederated Government," as he termed it, the States were still to act independently, even in the selection of officers of the General Government. He wrote to General Knox, June 17, 1788, "I can not but hope that the States which may be disposed to make a secession will think often and seriously on the consequences." June 28, 1788, he wrote to General Pinckney that New Hampshire "had acceded to the new Confederacy," and, in reference to North Carolina, "I should be astonished if that State should withdraw from the Union."
I shall add but two other citations. They are from speeches of John Marshall, afterward the most distinguished Chief Justice of the United States—who has certainly never been regarded as holding high views of State rights—in the Virginia Convention of 1788. In the first case, he was speaking of the power of the States over the militia, and is thus reported:
"The State governments did not derive their powers from the General Government; but each government derived its powers from the people, and each was to act according to the powers given it. Would any gentleman deny this?... Could any man say that this power was not retained by the States, as they had not given it away? For (says he) does not a power remain till it is given away? The State Legislatures had power to command and govern their militia before, and have it still, undeniably, unless there be something in this Constitution that takes it away....
"He concluded by observing that the power of governing the militia was not vested in the States by implication, because, being possessed of it antecedently to the adoption of the Government, and not being divested of it by any grant or restriction in the Constitution, they must necessarily be as fully possessed of it as ever they had been, and it could not be said that the States derived any powers from that system, but retained them, though not acknowledged in any part of it."
In the other case, the special subject was the power of the Federal judiciary. Mr. Marshall said, with regard to this: "I hope that no gentleman will think that a State can be called at the bar of the Federal court. Is there no such case at present? Are there not many cases, in which the Legislature of Virginia is a party, and yet the State is not sued? Is it rational to suppose that the sovereign power shall be dragged before a court?"
Authorities to the same effect might be multiplied indefinitely by quotation from nearly all the most eminent statesmen and patriots of that brilliant period. My limits, however, permit me only to refer those in quest of more exhaustive information to the original records, or to the "Republic of Republics," in which will be found a most valuable collection and condensation of the teaching of the fathers on the subject. There was no dissent, at that period, from the interpretation of the Constitution which I have set forth, as given by its authors, except in the objections made by its adversaries. Those objections were refuted and silenced, until revived, long afterward, and presented as the true interpretation, by the school of which Judge Story was the most effective founder.
At an earlier period—but when he had already served for several years in Congress, and had attained the full maturity of his powers—Mr. Webster held the views which were presented in a memorial to Congress of citizens of Boston, December 15, 1819, relative to the admission of Missouri, drawn up and signed by a committee of which he was chairman, and which also included among its members Mr. Josiah Quincy. He speaks of the States as enjoying "the exclusive possession of sovereignty" over their own territory, calls the United States "the American Confederacy," and says, "The only parties to the Constitution, contemplated by it originally, were the thirteen confederated States." And again: "As between the original States, the representation rests on compact and plighted faith; and your memorialists have no wish that that compact should be disturbed, or that plighted faith in the slightest degree violated."
It is satisfactory to know that in the closing year of his life, when looking retrospectively, with judgment undisturbed by any extraneous influence, he uttered views of the Government which must stand the test of severest scrutiny and defy the storms of agitation, for they are founded on the rock of truth. In letters written and addresses delivered during the Administration of Mr. Fillmore, he repeatedly applies to the Constitution the term "compact," which, in 1833, he had so vehemently repudiated. In his speech at Capon Springs, Virginia, in 1851, he says:
"If the South were to violate any part of the Constitution intentionally and systematically, and persist in so doing year after year, and no remedy could be had, would the North be any longer bound by the rest of it? And if the North were, deliberately, habitually, and of fixed purpose, to disregard one part of it, would the South be bound any longer to observe its other obligations?...
"How absurd it is to suppose that, when different parties enter into a compact for certain purposes, either can disregard any one provision, and expect, nevertheless, the other to observe the rest!...
"I have not hesitated to say, and I repeat, that, if the Northern States refuse, willfully and deliberately, to carry into effect that part of the Constitution which respects the restoration of fugitive slaves, and Congress provide no remedy, the South would no longer be bound to observe the compact. A bargain can not be broken on one side, and still bind the other side."
The principles which have been set forth in the foregoing chapters, although they had come to be considered as peculiarly Southern, were not sectional in their origin. In the beginning and earlier years of our history they were cherished as faithfully and guarded as jealously in Massachusetts and New Hampshire as in Virginia or South Carolina. It was in these principles that I was nurtured. I have frankly proclaimed them during my whole life, always contending in the Senate of the United States against what I believed to be the mistaken construction of the Constitution taught by Mr. Webster and his adherents. While I honored the genius of that great man, and held friendly personal relations with him, I considered his doctrines on these points—or rather the doctrines advocated by him during the most conspicuous and influential portions of his public career—to be mischievous, and the more dangerous to the welfare of the country and the liberties of mankind on account of the signal ability and magnificent eloquence with which they were argued.
[Footnote 80: Elliott's "Debates," vol. i, p. 239; "Madison Papers," pp. 1119-1124.]
[Footnote 81: "Madison Papers," p. 1184.]
[Footnote 82: "Federalist," No. lxxxi.]
[Footnote 83: "Federalist," No. lxxxiv.]
[Footnote 84: Ibid., No. lxxxv.]
[Footnote 85: Elliott's "Debates," vol. iii, pp. 389-391.]
[Footnote 86: Elliott's "Debates," vol. iii, p. 503.]
[Footnote 87: Curtis's "Life of Webster," chap. xxxvii, vol. ii, pp. 518, 519.]
The Right of Secession.—The Law of Unlimited Partnerships.—The "Perpetual Union" of the Articles of Confederation and the "More Perfect Union" of the Constitution.—The Important Powers conferred upon the Federal Government and the Fundamental Principles of the Compact the same in both Systems.—The Right to resume Grants, when failing to fulfill their Purposes, expressly and distinctly asserted in the Adoption of the Constitution.
The Right of Secession—that subject which, beyond all others, ignorance, prejudice, and political rancor have combined to cloud with misstatements and misapprehensions—is a question easily to be determined in the light of what has already been established with regard to the history and principles of the Constitution. It is not something standing apart by itself—a factious creation, outside of and antagonistic to the Constitution—as might be imagined by one deriving his ideas from the political literature most current of late years. So far from being against the Constitution or incompatible with it, we contend that, if the right to secede is not prohibited to the States, and no power to prevent it expressly delegated to the United States, it remains as reserved to the States or the people, from whom all the powers of the General Government were derived.
The compact between the States which formed the Union was in the nature of a partnership between individuals without limitation of time, and the recognized law of such partnerships is thus stated by an eminent lawyer of Massachusetts in a work intended for popular use:
"If the articles between the partners do not contain an agreement that the partnership shall continue for a specified time, it may be dissolved at the pleasure of either partner. But no partner can exercise this power wantonly and injuriously to the other partners, without making himself responsible for the damage he thus causes. If there be a provision that the partnership shall continue a certain time, this is binding."
We have seen that a number of "sovereign, free, and independent" States, during the war of the Revolution, entered into a partnership with one another, which was not only unlimited in duration, but expressly declared to be a "perpetual union." Yet, when that Union failed to accomplish the purposes for which it was formed, the parties withdrew, separately and independently, one after another, without any question made of their right to do so, and formed a new association. One of the declared objects of this new partnership was to form "a more perfect union." This certainly did not mean more perfect in respect of duration; for the former union had been declared perpetual, and perpetuity admits of no addition. It did not mean that it was to be more indissoluble; for the delegates of the States, in ratifying the former compact of union, had expressed themselves in terms that could scarcely be made more stringent. They then said:
"And we do further solemnly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, on all questions which, by the said confederation, are submitted to them; and that the articles thereof shall be inviolably observed by the States we respectively represent; and that the Union shall be perpetual."
The formation of a "more perfect union" was accomplished by the organization of a government more complete in its various branches, legislative, executive, and judicial, and by the delegation to this Government of certain additional powers or functions which had previously been exercised by the Governments of the respective States—especially in providing the means of operating directly upon individuals for the enforcement of its legitimately delegated authority. There was no abandonment nor modification of the essential principle of a compact between sovereigns, which applied to the one case as fully as to the other. There was not the slightest intimation of so radical a revolution as the surrender of the sovereignty of the contracting parties would have been. The additional powers conferred upon the Federal Government by the Constitution were merely transfers of some of those possessed by the State governments—not subtractions from the reserved and inalienable sovereignty of the political communities which conferred them. It was merely the institution of a new agent who, however enlarged his powers might be, would still remain subordinate and responsible to the source from which they were derived—that of the sovereign people of each State. It was an amended Union, not a consolidation.
It is a remarkable fact that the very powers of the Federal Government and prohibitions to the States, which are most relied upon by the advocates of centralism as incompatible with State sovereignty, were in force under the old Confederation when the sovereignty of the States was expressly recognized. The General Government had then, as now, the exclusive right and power of determining on peace and war, making treaties and alliances, maintaining an army and navy, granting letters of marque and reprisal, regulating coinage, establishing and controlling the postal service—indeed, nearly all the so-called "characteristic powers of sovereignty" exercised by the Federal Government under the existing Constitution, except the regulation of commerce, and of levying and collecting its revenues directly, instead of through the interposition of the State authorities. The exercise of these first-named powers was prohibited to the States under the old compact, "without the consent of the United States in Congress assembled," but no one has claimed that the Confederation had thereby acquired sovereignty.
Entirely in accord with these truths are the arguments of Mr. Madison in the "Federalist," to show that the great principles of the Constitution are substantially the same as those of the Articles of Confederation. He says:
"I ask, What are these principles? Do they require that, in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed.... Do these principles, in fine, require that the powers of the General Government should be limited, and that, beyond this limit, the States should be left in possession of their sovereignty and independence? We have seen that, in the new Government as in the old, the general powers are limited; and that the States, in all unenumerated cases, are left in the enjoyment of their sovereign and independent jurisdiction."
"The truth is," he adds, "that the great principles of the Constitution proposed by the Convention may be considered less as absolutely new, than as the expansion of principles which are found in the Articles of Confederation."
In the papers immediately following, he establishes this position in detail by an analysis of the principal powers delegated to the Federal Government, showing that the spirit of the original instructions to the Convention had been followed in revising "the Federal Constitution" and rendering it "adequate to the exigencies of government and the preservation of the Union."
The present Union owes its very existence to the dissolution, by separate secession of its members, of the former Union, which, as we have thus seen, as to its organic principles, rested upon precisely the same foundation. The right to withdraw from the association results, in either case, from the same principles—principles which, I think, have been established on an impregnable basis of history, reason, law, and precedent.
It is not contended that this right should be resorted to for insufficient cause, or, as the writer already quoted on the law of partnership says, "wantonly and injuriously to the other partners," without responsibility of the seceding party for any damage thus done. No association can be dissolved without a likelihood of the occurrence of incidental questions concerning common property and mutual obligations—questions sometimes of a complex and intricate sort. If a wrong be perpetrated, in such case, it is a matter for determination by the means usually employed among independent and sovereign powers—negotiation, arbitration, or, in the failure of these, by war, with which, unfortunately, Christianity and civilization have not yet been able entirely to dispense. But the suggestion of possible evils does not at all affect the question of right. There is no great principle in the affairs either of individuals or of nations that is not liable to such difficulties in its practical application.
But, we are told, there is no mention made of secession in the Constitution. Mr. Everett says: "The States are not named in it; the word sovereignty does not occur in it; the right of secession is as much ignored in it as the procession of the equinoxes." We have seen how very untenable is the assertion that the States are not named in it, and how much pertinency or significance in the omission of the word "sovereignty." The pertinent question that occurs is, Why was so obvious an attribute of sovereignty not expressly renounced if it was intended to surrender it? It certainly existed; it was not surrendered; therefore it still exists. This would be a more natural and rational conclusion than that it has ceased to exist because it is not mentioned.
The simple truth is, that it would have been a very extraordinary thing to incorporate into the Constitution any express provision for the secession of the States and dissolution of the Union. Its founders undoubtedly desired and hoped that it would be perpetual; against the proposition for power to coerce a State, the argument was that it would be a means, not of preserving, but of destroying, the Union. It was not for them to make arrangements for its termination—a calamity which there was no occasion to provide for in advance. Sufficient for their day was the evil thereof. It is not usual, either in partnerships between men or in treaties between governments, to make provision for a dissolution of the partnership or a termination of the treaty, unless there be some special reason for a limitation of time. Indeed, in treaties, the usual formula includes a declaration of their perpetuity; but in either case the power of the contracting parties, or of any of them, to dissolve the compact, on terms not damaging to the rights of the other parties, is not the less clearly understood. It was not necessary in the Constitution to affirm the right of secession, because it was an attribute of sovereignty, and the States had reserved all which they had not delegated.
The right of the people of the several States to resume the powers delegated by them to the common agency, was not left without positive and ample assertion, even at a period when it had never been denied. The ratification of the Constitution by Virginia has already been quoted, in which the people of that State, through their Convention, did expressly "declare and make known that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them, whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them and at their will."
New York and Rhode Island were no less explicit, both declaring that "the powers of government may be reassumed by the people whenever it shall become necessary to their happiness."
These expressions are not mere obiter dicta, thrown out incidentally, and entitled only to be regarded as an expression of opinion by their authors. Even if only such, they would carry great weight as the deliberately expressed judgment of enlightened contemporaries, but they are more: they are parts of the very acts or ordinances by which these States ratified the Constitution and acceded to the Union, and can not be detached from them. If they are invalid, the ratification itself was invalid, for they are inseparable. By inserting these declarations in their ordinances, Virginia, New York, and Rhode Island, formally, officially, and permanently, declared their interpretation of the Constitution as recognizing the right of secession by the resumption of their grants. By accepting the ratifications with this declaration incorporated, the other States as formally accepted the principle which it asserted.
I am well aware that it has been attempted to construe these declarations concerning the right of the people to reassume their delegations of power—especially in the terms employed by Virginia, "people of the United States"—as having reference to the idea of one people, in mass, or "in the aggregate." But it can scarcely be possible that any candid and intelligent reader, who has carefully considered the evidence already brought to bear on the subject, can need further argument to disabuse his mind of that political fiction. The "people of the United States," from whom the powers of the Federal Government were "derived," could have been no other than the people who ordained and ratified the Constitution; and this, it has been shown beyond the power of denial, was done by the people of each State, severally and independently. No other people were known to the authors of the declarations above quoted. Mr. Madison was a leading member of the Virginia Convention, which made that declaration, as well as of the general Convention that drew up the Constitution. We have seen what his idea of "the people of the United States" was—"not the people as composing one great body, but the people as composing thirteen sovereignties." Mr. Lee, of Westmoreland ("Light-Horse Harry"), in the same Convention, answering Mr. Henry's objection to the expression, "We, the people," said: "It [the Constitution] is now submitted to the people of Virginia. If we do not adopt it, it will be always null and void as to us. Suppose it was found proper for our adoption, and becoming the government of the people of Virginia, by what style should it be done? Ought we not to make use of the name of the people? No other style would be proper." It would certainly be superfluous, after all that has been presented heretofore, to add any further evidence of the meaning that was attached to these expressions by their authors. "The people of the United States" were in their minds the people of Virginia, the people of Massachusetts, and the people of every other State that should agree to unite. They could have meant only that the people of their respective States who had delegated certain powers to the Federal Government, in ratifying the Constitution and acceding to the Union, reserved to themselves the right, in event of the failure of their purposes, to "resume" (or "reassume") those powers by seceding from the same Union.
Finally, the absurdity of the construction attempted to be put upon these expressions will be evident from a very brief analysis. If the assertion of the right of reassumption of their powers was meant for the protection of the whole people—the people in mass—the people "in the aggregate"—of a consolidated republic—against whom or what was it to protect them? By whom were the powers granted to be perverted to the injury or oppression of the whole people? By themselves or by some of the States, all of whom, according to this hypothesis, had been consolidated into one? As no danger could have been apprehended from either of these, it must have been against the Government of the United States that the provision was made; that is to say, the whole people of a republic make this declaration against a Government established by themselves and entirely subject to their own control, under a Constitution which contains provision for its own amendment by this very same "whole people," whenever they may think proper! Is it not a libel upon the statesmen of that generation to attribute to their grave and solemn declarations a meaning so vapid and absurd?
To those who argue that the grants of the Constitution are fatal to the reservation of sovereignty by the States, the Constitution furnishes a conclusive answer in the amendment which was coeval with the adoption of the instrument, and which declares that all powers not delegated to the Government of the Union were reserved to the States or to the people. As sovereignty was not delegated by the States, it was necessarily reserved. It would be superfluous to answer arguments against implied powers of the States; none are claimed by implication, because all not delegated by the States remained with them, and it was only in an abundance of caution that they expressed the right to resume such parts of their unlimited power as was delegated for the purposes enumerated. As there be those who see danger to the perpetuity of the Union in the possession of such power by the States, and insist that our fathers did not intend to bind the States together by a compact no better than "a rope of sand," it may be well to examine their position. From what have dangers to the Union arisen? Have they sprang from too great restriction on the exercise of the granted powers, or from the assumption by the General Government of power claimed by implication? The whole record of our Union answers, from the latter only.
Was this tendency to usurpation caused by the presumption of paramount authority in the General Government, or by the assertion of the right of a State to resume the powers it had delegated? Reasonably and honestly it can not be assigned to the latter. Let it be supposed that the "whole people" had recognized the right of a State of the Union, peaceably and independently, to resume the powers which, peaceably and independently, she had delegated to the Federal Government, would not this have been potent to restrain the General Government from exercising its functions to the injury and oppression of such State? To deny that effect would be to suppose that a dominant majority would be willing to drive a State from the Union. Would the admission of the right of a State to resume the grants it had made, have led to the exercise of that right for light and trivial causes? Surely the evidence furnished by the nations, both ancient and modern, refutes the supposition. In the language of the Declaration of Independence, "All experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed." Would not real grievances be rendered more tolerable by the consciousness of power to remove them; and would not even imaginary wrongs be embittered by the manifestation of a purpose to make them perpetual? To ask these questions is to answer them.
The wise and brave men who had, at much peril and great sacrifice, secured the independence of the States, were as little disposed to surrender the sovereignty of the States as they were anxious to organize a General Government with adequate powers to remedy the defects of the Confederation. The Union they formed was not to destroy the States, but to "secure the blessings of liberty to ourselves and our posterity."
[Footnote 88: Parsons, "Rights of a Citizen," chap. xx, section 3.]
[Footnote 89: Ratification appended to Articles of Confederation. (See Elliott's "Debates," vol. i, p. 113.)]
[Footnote 90: "Federalist," No. xl.]
[Footnote 91: Ibid., Nos. xli-xliv.]
[Footnote 92: See Elliott's "Debates," vol. i, p. 360.]
[Footnote 93: Ibid., pp. 361, 369.]
[Footnote 94: Elliott's "Debates," vol. iii, p. 114.]
[Footnote 95: Ibid., p. 71.]
Coercion the Alternative to Secession.—Repudiation of it by the Constitution and the Fathers of the Constitutional Era.—Difference between Mr. Webster and Mr. Hamilton.
The alternative to secession is coercion. That is to say, if no such right as that of secession exists—if it is forbidden or precluded by the Constitution—then it is a wrong; and, by a well settled principle of public law, for every wrong there must be a remedy, which in this case must be the application of force to the State attempting to withdraw from the Union.
Early in the session of the Convention which formed the Constitution, it was proposed to confer upon Congress the power "to call forth the force of the Union against any member of the Union failing to fulfill its duty under the articles thereof." When this proposition came to be considered, Mr. Madison observed that "a union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against a State would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound. He hoped that such a system would be framed as might render this recourse unnecessary, and moved that the clause be postponed." This motion was adopted nem. con., and the proposition was never again revived. Again, on a subsequent occasion, speaking of an appeal to force, Mr. Madison said: "Was such a remedy eligible? Was it practicable?... Any government for the United States, formed on the supposed practicability of using force against the unconstitutional proceedings of the States, would prove as visionary and fallacious as the government of Congress." Every proposition looking in any way to the same or a similar object was promptly rejected by the convention. George Mason, of Virginia, said of such a proposition: "Will not the citizens of the invaded State assist one another, until they rise as one man and shake off the Union altogether?"
Oliver Ellsworth, in the ratifying Convention of Connecticut, said: "This Constitution does not attempt to coerce sovereign bodies, States, in their political capacity. No coercion is applicable to such bodies but that of an armed force. If we should attempt to execute the laws of the Union by sending an armed force against a delinquent State, it would involve the good and bad, the innocent and guilty, in the same calamity."
Mr. Hamilton, in the Convention of New York, said: "To coerce the States is one of the maddest projects that was ever devised.... What picture does this idea present to our view? A complying State at war with a non-complying State: Congress marching the troops of one State into the bosom of another ... Here is a nation at war with itself. Can any reasonable man be well disposed toward a government which makes war and carnage the only means of supporting itself—a government that can exist only by the sword?... But can we believe that one State will ever suffer itself to be used as an instrument of coercion? The thing is a dream—it is impossible."
Unhappily, our generation has seen that, in the decay of the principles and feelings which animated the hearts of all patriots in that day, this thing, like many others then regarded as impossible dreams, has been only too feasible, and that States have permitted themselves to be used as instruments, not merely for the coercion, but for the destruction of the freedom and independence of their sister States.
Edmund Randolph, Governor of Virginia, although the mover of the original proposition to authorize the employment of the forces of the Union against a delinquent member, which had been so signally defeated in the Federal Convention, afterward, in the Virginia Convention, made an eloquent protest against the idea of the employment of force against a State. "What species of military coercion," said he, "could the General Government adopt for the enforcement of obedience to its demands? Either an army sent into the heart of a delinquent State, or blocking up its ports. Have we lived to this, then, that, in order to suppress and exclude tyranny, it is necessary to render the most affectionate friends the most bitter enemies, set the father against the son, and make the brother slay the brother? Is this the happy expedient that is to preserve liberty? Will it not destroy it? If an army be once introduced to force us, if once marched into Virginia, figure to yourselves what the dreadful consequence will be: the most lamentable civil war must ensue."
We have seen already how vehemently the idea of even judicial coercion was repudiated by Hamilton, Marshall, and others. The suggestion of military coercion was uniformly treated, as in the above extracts, with still more abhorrence. No principle was more fully and firmly settled on the highest authority than that, under our system, there could be no coercion of a State.
Mr. Webster, in his elaborate speech of February 16, 1833, arguing throughout against the sovereignty of the States, and in the course of his argument sadly confounding the ideas of the Federal Constitution and the Federal Government, as he confounds the sovereign people of the States with the State governments, says: "The States can not omit to appoint Senators and electors. It is not a matter resting in State discretion or State pleasure.... No member of a State Legislature can refuse to proceed, at the proper time, to elect Senators to Congress, or to provide for the choice of electors of President and Vice-President, any more than the members can refuse, when the appointed day arrives, to meet the members of the other House, to count the votes for those officers and ascertain who are chosen." This was before the invention in 1877 of an electoral commission to relieve Congress of its constitutional duty to count the vote. Mr. Hamilton, on the contrary, fresh from the work of forming the Constitution, and familiar with its principles and purposes, said: "It is certainly true that the State Legislatures, by forbearing the appointment of Senators, may destroy the national Government."
It is unnecessary to discuss the particular question on which these two great authorities are thus directly at issue. I do not contend that the State Legislatures, of their own will, have a right to forego the performance of any Federal duty imposed upon them by the Constitution. But there is a power beyond and above that of either the Federal or State governments—the power of the people of the State, who ordained and established the Constitution, as far as it applies to themselves, reserving, as I think has been demonstrated, the right to reassume the grants of power therein made, when they deem it necessary for their safety or welfare to do so. At the behest of this power, it certainly becomes not only the right, but the duty, of their State Legislature to refrain from any action implying adherence to the Union, or partnership, from which the sovereign has withdrawn.
[Footnote 96: "Madison Papers," pp. 732, 761.]
[Footnote 97: Ibid., p. 822.]
[Footnote 98: Ibid., p. 914.]
[Footnote 99: Elliott's "Debates," vol. ii, p. 199.]
[Footnote 100: Ibid., pp. 232, 233.]
[Footnote 101: Elliott's "Debates," vol. iii, p. 117.]
[Footnote 102: "Congressional Debates," vol. ix, Part I, p. 566.]
[Footnote 103: "Federalist," No. lix.]
Some Objections considered.—The New States.—Acquired Territory.—Allegiance, false and true.—Difference between Nullification and Secession.—Secession a Peaceable Remedy.—No Appeal to Arms.—Two Conditions noted.
It would be only adding to a superabundance of testimony to quote further from the authors of the Constitution in support of the principle, unquestioned in that generation, that the people who granted—that is to say, of course, the people of the several States—might resume their grants. It will require but few words to dispose of some superficial objections that have been made to the application of this doctrine in a special case.
It is sometimes said that, whatever weight may attach to principles founded on the sovereignty and independence of the original thirteen States, they can not apply to the States of more recent origin—constituting now a majority of the members of the Union—because these are but the offspring or creatures of the Union, and must of course be subordinate and dependent.
This objection would scarcely occur to any instructed mind, though it may possess a certain degree of specious plausibility for the untaught. It is enough to answer that the entire equality of the States, in every particular, is a vital condition of their union. Every new member that has been admitted into the partnership of States came in, as is expressly declared in the acts for their admission, on a footing of perfect equality in every respect with the original members. This equality is as complete as the equality, before the laws, of the son with the father, immediately on the attainment by the former of his legal majority, without regard to the prior condition of dependence and tutelage. The relations of the original States to one another and to the Union can not be affected by any subsequent accessions of new members, as the Constitution fixes those relations permanently, and furnishes the normal standard which is applicable to all. The Boston memorial to Congress, referred to in a foregoing chapter, as prepared by a committee with Mr. Webster at its head, says that the new States "are universally considered as admitted into the Union upon the same footing as the original States, and as possessing, in respect to the Union, the same rights of sovereignty, freedom, and independence, as the other States."
But, with regard to States formed of territory acquired by purchase from France, Spain, and Mexico, it is claimed that, as they were bought by the United States, they belong to the same, and have no right to withdraw at will from an association the property which had been purchased by the other parties.
Happy would it have been if the equal rights of the people of all the States to the enjoyment of territory acquired by the common treasure could have been recognized at the proper time! There would then have been no secession and no war.
As for the sordid claim of ownership of States, on account of the money spent for the land which they contain—I can understand the ground of a claim to some interest in the soil, so long as it continues to be public property, but have yet to learn in what way the United States ever became purchaser of the inhabitants or of their political rights.
Any question in regard to property has always been admitted to be matter for fair and equitable settlement, in case of the withdrawal of a State.
The treaty by which the Louisiana territory was ceded to the United States expressly provided that the inhabitants thereof should be "admitted, as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities of citizens of the United States." In all other acquisitions of territory the same stipulation is either expressed or implied. Indeed, the denial of the right would be inconsistent with the character of American political institutions.
Another objection made to the right of secession is based upon obscure, indefinite, and inconsistent ideas with regard to allegiance. It assumes various shapes, and is therefore somewhat difficult to meet, but, as most frequently presented, may be stated thus: that the citizen owes a double allegiance, or a divided allegiance—partly to his State, partly to the United States: that it is not possible for either of these powers to release him from the allegiance due to the other: that the State can no more release him from his obligations to the Union than the United States can absolve him from his duties to his State. This is the most moderate way in which the objection is put. The extreme centralizers go further, and claim that allegiance to the Union, or, as they generally express it, to the Government—meaning thereby the Federal Government—is paramount, and the obligation to the State only subsidiary—if, indeed, it exists at all.
This latter view, if the more monstrous, is at least the more consistent of the two, for it does not involve the difficulty of a divided allegiance, nor the paradoxical position in which the other places the citizen, in case of a conflict between his State and the other members of the Union, of being necessarily a rebel against the General Government or a traitor to the State of which he is a citizen.
As to true allegiance, in the light of the principles which have been established, there can be no doubt with regard to it. The primary, paramount allegiance of the citizen is due to the sovereign only. That sovereign, under our system, is the people—the people of the State to which he belongs—the people who constituted the State government which he obeys, and which protects him in the enjoyment of his personal rights—the people who alone (as far as he is concerned) ordained and established the Federal Constitution and Federal Government—the people who have reserved to themselves sovereignty, which involves the power to revoke all agencies created by them. The obligation to support the State or Federal Constitution and the obedience due to either State or Federal Government are alike derived from and dependent on the allegiance due to this sovereign. If the sovereign abolishes the State government and ordains and establishes a new one, the obligation of allegiance requires him to transfer his obedience accordingly. If the sovereign withdraws from association with its confederates in the Union, the allegiance of the citizen requires him to follow the sovereign. Any other course is rebellion or treason—words which, in the cant of the day, have been so grossly misapplied and perverted as to be made worse than unmeaning. His relation to the Union arose from the membership of the State of which he was a citizen, and ceased whenever his State withdrew from it. He can not owe obedience—much less allegiance—to an association from which his sovereign has separated, and thereby withdrawn him.