3. In the third place, it is not the Government of the United States that is declared to be supreme, but the Const.i.tution 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 Const.i.tution 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 Const.i.tution, 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 Const.i.tution, 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 a.s.sertion be less credible than that they proceeded to inst.i.tute 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 [pg 152] governments are sovereign, in the European sense of the word, all being restrained by written const.i.tutions."77

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

"There is no language in the whole Const.i.tution 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 Const.i.tution there is nothing of that kind. The reason is that, in the Const.i.tution, it is the people who speak and not the States. The people ordain the Const.i.tution, and therein address themselves to the States and to the Legislatures of the States in the language of injunction and prohibition."78

It is surprising that such inconsistent ideas should proceed from a source so eminent. Its author falls into the very error which he had just before so distinctly pointed out, in confounding the people of the States with their governments. In the vehemence of his hostility to State sovereignty, he seems-as all of his disciples seem-unable even to comprehend that it means the sovereignty, not of State governments, but of people who make them. With minds preoccupied by the unreal idea of one great people of a consolidated nation, these gentlemen are blinded to the plain and primary truth that the only way in which the people ordained the Const.i.tution was as the people of States. When Mr. Webster says that "in the Const.i.tution 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.

[pg 153]

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 Const.i.tution. 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 ent.i.tled 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 [pg 154] of estates, making treaties with foreign powers, levying taxes, etc. The enumeration of particulars might be extended, but these will suffice as ill.u.s.trations.

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 Const.i.tution, 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 ent.i.tled to the allegiance of the citizen.

When the Articles of Confederation were amended, when the new Const.i.tution was subst.i.tuted 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 [pg 155] 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 const.i.tuted. 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 Const.i.tution, 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 const.i.tuted of States. As a British author,79 referring to the old Teutonic system, has expressed the same idea, the States are the integers, the United States the multiple which results from them. The Government of the United States derives its existence from the same source, and exercises its functions by the will of the same sovereignty that creates and confers authority upon the State governments. The people of each State are, in either case, the [pg 156] 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 cooperation 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 ma.s.s 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 Const.i.tution 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: (return) "Rebellion Record," vol. i, Doc.u.ments, p. 213.

Footnote 75: (return) "Federalist," No. xliv.

Footnote 76: (return) "Federalist," No. xxvii.

Footnote 77: (return) "Congressional Debates," vol. ix, Part I, p. 565.

Footnote 78: (return) Ibid., p. 566.

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

[pg 157]

CHAPTER X.

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

Looking back for a moment at the ground over which we have gone, I think it may be fairly a.s.serted 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 a.s.serted and guaranteed.

3. That, in forming the "more perfect union" of the Const.i.tution, 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 Const.i.tution, 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 ma.s.ses, 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 Const.i.tution, 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 rea.s.sumption by the same authority that conferred them.

[pg 158]

6. That the "people" who organized the first confederation, the people who dissolved it, the people who ordained and established the Const.i.tution 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 Const.i.tution, 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 ent.i.tled 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 Const.i.tution and in the tenth amendment, is used distributively; that the only "people of the United States" known to the Const.i.tution 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 Const.i.tution.

The fict.i.tious 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 mult.i.tude 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 [pg 159] obscure the perception of the sovereign power of the princ.i.p.al 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 Const.i.tution could scarcely have antic.i.p.ated the idea of such a community as the people of the United States in one ma.s.s. 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 [pg 160] State, voting separately and independently, though it is ambiguous, and may admit of the other construction. But this is immaterial. The proposition was submitted to a vote, and received the approval of only one State-Pennsylvania, of which Mr. Morris and Mr. Wilson were both representatives. Nine States voted against it.80

Six days afterward (July 23d), in a discussion of the proposed ratification of the Const.i.tution 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 Const.i.tution] be made to one General Convention, chosen and authorized by the people, to consider, amend, and establish the same."81

Here the issue seems to have been more distinctly made between the two ideas of people of the States and one people in the aggregate. The fate of the latter is briefly recorded in the two words, "not seconded." Mr. Morris was a man of distinguished ability, great personal influence, and undoubted patriotism, but, out of all that a.s.semblage-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 Const.i.tution that theory which now predominates, the theory on which was waged the late b.l.o.o.d.y 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 Const.i.tution 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 Const.i.tution 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 [pg 161] 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 Const.i.tution 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 Const.i.tution. 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 Const.i.tution 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 ma.s.s-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 a.s.sembled 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 Const.i.tution, 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 a.s.sociates, Mr. Madison and Mr. Jay, the most [pg 162] distinguished expounder and advocate of the Const.i.tution, 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 Const.i.tution, 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 inst.i.tuted 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."82

This extract is very significant, clearly showing that Mr. Hamilton a.s.sumed 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 [pg 163] 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 Const.i.tution 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 Const.i.tution 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 Const.i.tution, but would be absolutely dangerous. They would contain various exceptions to powers not granted, and on this very account would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done, which there is no power to do?"83 Could language be more clear or more complete in vindication of the principles laid down in this work? Mr. Hamilton declares, in effect, that the grants to the Federal Government in the Const.i.tution 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 antic.i.p.ating 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 Const.i.tution for the United States must inevitably consist of a great variety of particulars, in which thirteen independent States are to be accommodated in their interests or opinions of interest.... Hence the necessity of molding and arranging all the particulars, which are to compose the whole, in such a manner as to satisfy all the parties to the compact."84 There is no intimation here, or anywhere else, of the existence of any such idea as that of the aggregated people of one great consolidated state. It is an incidental enunciation of the same [pg 164] truth soon afterward a.s.serted by Madison in the Virginia Convention-that the people who ordained and established the Const.i.tution 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 Const.i.tution 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 Const.i.tution, 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 ill.u.s.trious 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 Const.i.tution. He refers to the Const.i.tution itself as "a compact or treaty," and cla.s.sifies 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 Const.i.tution "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 [pg 165] 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."