Here we have both the singular and plural senses of the same word—one people, Israel, and all the people of the earth—in two consecutive sentences. In "the people of the earth," the word people is used precisely as it is in the expression "the people of the United States" in the preamble to the Constitution, and has exactly the same force and effect. If in the latter case it implies that the people of Massachusetts and those of Virginia were mere fractional parts of one political community, it must in the former imply a like unity among the Philistines, the Egyptians, the Assyrians, Babylonians, and Persians, and all other "people of the earth," except the Israelites. Scores of examples of the same sort might be cited if it were necessary.42
In the Declaration of Independence we find precisely analogous instances of the employment of the singular form for both singular and plural senses—"one people," "a free people," in the former, and "the good people of these colonies" in the latter. Judge Story, in the excess of his zeal in behalf of a theory of consolidation, bases upon this last expression the conclusion that the assertion of independence was the act of "the whole people of the united colonies" as a unit; overlooking or suppressing the fact that, in the very same sentence, the colonies declare themselves "free and independent States"—not a free and independent state—repeating the words "independent States" three times.
If, however, the Declaration of Independence constituted one "whole people" of the colonies, then that geographical section of it, formerly known as the colony of Maryland, was in a state of revolt or "rebellion" against the others, as well as against Great Britain, from 1778 to 1781, during which period Maryland refused to ratify or be bound by the Articles of Confederation, which, according to this theory, was binding upon her, as a majority of the "whole people" had adopted it. A fortiori, North Carolina and Rhode Island were in a state of rebellion in 1789-'90, while they declined to ratify and recognize the Constitution adopted by the other eleven fractions of this united people. Yet no hint of any such pretension—of any claim of authority over them by the majority—of any assertion of "the supremacy of the Union"—is to be found in any of the records of that period.
It might have been unnecessary to bestow so much time and attention in exposing the absurdity of the deductions from a theory so false, but for the fact that it has been specious enough to secure the countenance of men of such distinction as Webster, Story, and Everett; and that it has been made the plea to justify a bloody war against that principle of State sovereignty and independence, which was regarded by the fathers of the Union as the corner-stone of the structure and the basis of the hope for its perpetuity.
The Preamble to the Constitution—subject continued.—Growth of the Federal Government and Accretions of Power.—Revival of Old Errors.—Mistakes and Misstatements.—Webster, Story, and Everett.—Who "ordained and established" the Constitution?
In the progressive growth of the Government of the United States in power, splendor, patronage, and consideration abroad, men have been led to exalt the place of the Government above that of the States which created it. Those who would understand the true principles of the Constitution can not afford to lose sight of the essential plurality of idea invariably implied in the term "United States," wherever it is used in that instrument. No such unit as the United States is ever mentioned therein. We read that "no title of nobility shall be granted by the United States, and no person holding any office of profit or trust under them shall, without the consent of Congress, accept," etc.43 "The President ... shall not receive, within that period, any other emolument from the United States, or any of them."44 "The laws of the United States, and treaties made or which shall be made under their authority," etc.45 "Treason against the United States shall consist only in levying war against them, or in adhering to their enemies."46 The Federal character of the Union is expressed by this very phraseology, which recognizes the distinct integrity of its members, not as fractional parts of one great unit, but as component units of an association. So clear was this to contemporaries, that it needed only to be pointed out to satisfy their scruples. We have seen how effectual was the answer of Mr. Madison to the objections raised by Patrick Henry. Mr. Tench Coxe, of Pennsylvania, one of the ablest political writers of his generation, in answering a similar objection, said: "If the Federal Convention had meant to exclude the idea of 'union'—that is, of several and separate sovereignties joining in a confederacy—they would have said, 'We, the people of America'; for union necessarily involves the idea of competent States, which complete consolidation excludes."47
More than forty years afterward, when the gradual accretions to the power, prestige, and influence of the central Government had grown to such extent as to begin to hide from view the purposes for which it was founded, those very objections, which in the beginning had been answered, abandoned, and thrown aside, were brought to light again, and presented to the country as expositions of the true meaning of the Constitution. Mr. Webster, one of the first to revive some of those early misconceptions so long ago refuted as to be almost forgotten, and to breathe into them such renewed vitality as his commanding genius could impart, in the course of his well-known debate in the Senate with Mr. Hayne, in 1830, said:
"It can not be shown that the Constitution is a compact between State governments. The Constitution itself, in its very front, refutes that proposition: it declares that it is ordained and established by the people of the United States. So far from saying that it is established by the governments of the several States, it does not even say that it is established by the people of the several States; but it pronounces that it is established by the people of the United States in the aggregate."48
Judge Story about the same time began to advance the same theory, but more guardedly and with less rashness of statement. It was not until thirty years after that it attained its full development in the annunciations of sectionists rather than statesmen. Two such may suffice as specimens:
Mr. Edward Everett, in his address delivered on the 4th of July, 1861, and already referred to, says of the Constitution: "That instrument does not purport to be a 'compact,' but a constitution of government. It appears, in its first sentence, not to have been entered into by the States, but to have been ordained and established by the people of the United States for themselves and their 'posterity.' The States are not named in it; nearly all the characteristic powers of sovereignty are expressly granted to the General Government and expressly prohibited to the States."49 Mr. Everett afterward repeats the assertion that "the States are not named in it."50
But a yet more extraordinary statement of the "one people" theory is found in a letter addressed to the London "Times," in the same year, 1861, on the "Causes of the Civil War," by Mr. John Lothrop Motley, afterward Minister to the Court of St. James. In this letter Mr. Motley says of the Constitution of the United States:
"It was not a compact. Who ever heard of a compact to which there were no parties? or who ever heard of a compact made by a single party with himself? Yet the name of no State is mentioned in the whole document; the States themselves are only mentioned to receive commands or prohibitions; and the 'people of the United States' is the single party by whom alone the instrument is executed.
"The Constitution was not drawn up by the States, it was not promulgated in the name of the States, it was not ratified by the States. The States never acceded to it, and possess no power to secede from it. It was 'ordained and established' over the States by a power superior to the States; by the people of the whole land in their aggregate capacity," etc.
It would be very hard to condense a more amazing amount of audacious and reckless falsehood in the same space. In all Mr. Motley's array of bold assertions, there is not one single truth—unless it be, perhaps, that "the Constitution was not drawn up by the States." Yet it was drawn up by their delegates, and it is of such material as this, derived from writers whose reputation gives a semblance of authenticity to their statements, that history is constructed and transmitted.
One of the most remarkable—though, perhaps, the least important—of these misstatements is that which is also twice repeated by Mr. Everett—that the name of no State is mentioned in the whole document, or, as he puts it, "the States are not named in it." Very little careful examination would have sufficed to find, in the second section of the very first article of the Constitution, the names of every one of the thirteen then existent States distinctly mentioned, with the number of representatives to which each would be entitled, in case of acceding to the Constitution, until a census of their population could be taken. The mention there made of the States by name is of no special significance; it has no bearing upon any question of principle; and the denial of it is a purely gratuitous illustration of the recklessness of those from whom it proceeds, and the low estimate put on the intelligence of those addressed. It serves, however, to show how much credence is to be given to their authority as interpreters and expounders.
The reason why the names of the ratifying States were not mentioned has already been given: it was simply because it was not known which States would ratify. But, as regards mention of "the several States," "each State," "any State," "particular States," and the like, the Constitution is full of it. I am informed, by one who has taken the pains to examine carefully that document with reference to this very point, that—without including any mention of "the United States" or of "foreign states," and excluding also the amendments—the Constitution, in its original draft, makes mention of the States, as States, no less than seventy times; and of these seventy times, only three times in the way of prohibition of the exercise of a power. In fact, it is full of statehood. Leave out all mention of the States—I make no mere verbal point or quibble, but mean the States in their separate, several, distinct capacity—and what would remain would be of less account than the play of the Prince of Denmark with the part of Hamlet omitted.
But, leaving out of consideration for the moment all minor questions, the vital and essential point of inquiry now is, by what authority the Constitution was "ordained and established." Mr. Webster says it was done "by the people of the United States in the aggregate;" Mr. Everett repeats substantially the same thing; and Mr. Motley, taking a step further, says that "it was 'ordained and established' by a power superior to the States—by the people of the whole land in their aggregate capacity."
The advocates of this mischievous dogma assume the existence of an unauthorized, undefined power of a "whole people," or "people of the whole land," operating through the agency of the Philadelphia Convention, to impose its decrees upon the States. They forget, in the first place, that this Convention was composed of delegates, not of any one people, but of distinct States; and, in the second place, that their action had no force or validity whatever—in the words of Mr. Madison, that it was of no more consequence than the paper on which it was written—until approved and ratified by a sufficient number of States. The meaning of the preamble, "We, the people of the United States ... do ordain and establish this Constitution," is ascertained, fixed, and defined by the final article: "The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same." If it was already established, what need was there of further establishment? It was not ordained or established at all, until ratified by the requisite number of States. The announcement in the preamble of course had reference to that expected ratification, without which the preamble would have been as void as the body of the instrument. The assertion that "it was not ratified by the States" is so plainly and positively contrary, to well-known fact—so inconsistent with the language of the Constitution itself—that it is hard to imagine what was intended by it, unless it was to take advantage of the presumed ignorance of the subject among the readers of an English journal, to impose upon them, a preposterous fiction. It was State ratification alone—the ratification of the people of each State, independently of all other people—that gave force, vitality, and validity to the Constitution.
Judge Story, referring to the fact that the voters assembled in the several States, asks where else they could have assembled—a pertinent question on our theory, but the idea he evidently intended to convey was that the voting of "the people" by States was a mere matter of geographical necessity, or local convenience; just as the people of a State vote by counties; the people of a county by towns, "beats," or "precincts"; and the people of a city by wards. It is hardly necessary to say that, in all organized republican communities, majorities govern. When we speak of the will of the people of a community, we mean the will of a majority, which, when constitutionally expressed, is binding on any minority of the same community.
If, then, we can conceive, and admit for a moment, the possibility that, when the Constitution was under consideration, the people of the United States were politically "one people"—a collective unit—two deductions are clearly inevitable: In the first place, each geographical division of this great community would have been entitled to vote according to its relative population; and, in the second, the expressed will of the legal majority would have been binding upon the whole. A denial of the first proposition would be a denial of common justice and equal rights; a denial of the second would be to destroy all government and establish mere anarchy.
Now, neither of these principles was practiced or proposed or even imagined in the case of the action of the people of the United States (if they were one political community) upon the proposed Constitution. On the contrary, seventy thousand people in the State of Delaware had precisely the same weight—one vote—in its ratification, as seven hundred thousand (and more) in Virginia, or four hundred thousand in Pennsylvania. Would not this have been an intolerable grievance and wrong—would no protest have been uttered against it—if these had been fractional parts of one community of people?
Again, while the will of the consenting majority within any State was binding on the opposing minority in the same, no majority, or majorities, of States or people had any control whatever upon the people of another State. The Constitution was established, not "over the States," as asserted by Motley, but "between the States," and only "between the States so ratifying the same." Little Rhode Island, with her seventy thousand inhabitants, was not a mere fractional part of "the people of the whole land," during the period for which she held aloof, but was as free, independent, and unmolested, as any other sovereign power, notwithstanding the majority of more than three millions of "the whole people" on the other side of the question.
Before the ratification of the Constitution—when there was some excuse for an imperfect understanding or misconception of the terms proposed—Mr. Madison thus answered, in advance, the objections made on the ground of this misconception, and demonstrated its fallacy. He wrote:
"That it will be a federal and not a national act, as these terms are understood by objectors—the act of the people, as forming so many independent States, not as forming one aggregate nation—is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these has been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act."51
It is a tedious task to have to expose the misstatements, both of fact and of principle, which have occupied so much attention, but it is rendered necessary by the extent to which they have been imposed upon the acceptance of the public, through reckless assertion and confident and incessant repetition.
"'I remember,' says Mr. Webster, 'to have heard Chief-Justice Marshall ask counsel, who was insisting upon the authority of an act of legislation, if he thought an act of legislation could create or destroy a fact, or change the truth of history? "Would it alter the fact," said he, "if a Legislature should solemnly enact that Mr. Hume never wrote the History of England?" A Legislature may alter the law,' continues Mr. Webster, 'but no power can reverse a fact.' Hence, if the Convention of 1787 had expressly declared that the Constitution was [to be] ordained by 'the people of the United States in the aggregate,' or by the people of America as one nation, this would not have destroyed the fact that it was ratified by each State for itself, and that each State was bound only by 'its own voluntary act.'" (Bledsoe.)
But the Convention, as we have seen, said no such thing. No such community as "the people of the United States in the aggregate" is known to it, or ever acted on it. It was ordained, established, and ratified by the people of the several States; and no theories or assertions of a later generation can change or conceal this fixed fact, as it stands revealed in the light of contemporaneous records.
Footnote 49: (return)See address by Edward Everett at the Academy of Music, New York, July 4, 1861.
Verbal Cavils and Criticisms.—"Compact," "Confederacy," "Accession," etc.—The "New Vocabulary."—The Federal Constitution a Compact, and the States acceded to it.—Evidence of the Constitution itself and of Contemporary Records.
I have habitually spoken of the Federal Constitution as a compact, and of the parties to it as sovereign States. These terms should not, and in earlier times would not, have required explanation or vindication. But they have been called in question by the modern school of consolidation. These gentlemen admit that the Government under the Articles of Confederation was a compact. Mr. Webster, in his rejoinder to Mr. Hayne, on the 27th of January, 1830, said:
"When the gentleman says the Constitution is a compact between the States, he uses language exactly applicable to the old Confederation. He speaks as if he were in Congress before 1789. He describes fully that old state of things then existing. The Confederation was, in strictness, a compact; the States, as States, were parties to it. We had no other General Government. But that was found insufficient and inadequate to the public exigencies. The people were not satisfied with it, and undertook to establish a better. They undertook to form a General Government, which should stand on a new basis—not a confederacy, not a league, not a compact between States, but a Constitution."52
Again, in his discussion with Mr. Calhoun, three years afterward, he vehemently reiterates the same denial. Of the Constitution, he says: "Does it call itself a compact? Certainly not. It uses the word 'compact' but once, and that when it declares that the States shall enter into no compact.53 Does it call itself a league, a confederacy, a subsisting treaty between the States? Certainly not. There is not a particle of such language in all its pages."54
The artist, who wrote under his picture the legend "This is a horse," made effectual provision against any such cavil as that preferred by Mr. Webster and his followers, that the Constitution is not a compact, because it is not "so nominated in the bond." As well as I can recollect, there is no passage in the "Iliad" or the "Æneid" in which either of those great works "calls itself," or is called by its author, an epic poem, yet this would scarcely be accepted as evidence that they are not epic poems. In an examination of Mr. Webster's remarks, I do not find that he announces them to be either a speech or an argument; yet their claim to both these titles will hardly be disputed—notwithstanding the verbal criticism on the Constitution just quoted.
The distinction attempted to be drawn between the language proper to a confederation and that belonging to a constitution, as indicating two different ideas, will not bear the test of examination and application to the case of the United States. It has been fully shown, in previous chapters, that the terms "Union," "Federal Union," "Federal Constitution," "Constitution of the Federal Government," and the like, were used—not merely in colloquial, informal speech, but in public proceedings and official documents—with reference to the Articles of Confederation, as freely as they have since been employed under the present Constitution. The former Union was—as Mr. Webster expressly admits—as nobody denies—a compact between States, yet it nowhere "calls itself" "a compact"; the word does not occur in it even the one time that it occurs in the present Constitution, although the contracting States are in both prohibited from entering into any "treaty, confederation, or alliance" with one another, or with any foreign power, without the consent of Congress; and the contracting or constituent parties are termed "United States" in the one just as in the other.
Mr. Webster is particularly unfortunate in his criticisms upon what he terms the "new vocabulary," in which the Constitution is styled a compact, and the States which ratified it are spoken of as having "acceded" to it. In the same speech, last quoted, he says:
"This word 'accede,' not found either in the Constitution itself or in the ratification of it by any one of the States, has been chosen for use here, doubtless not without a well-considered purpose. The natural converse of accession is secession; and therefore, when it is stated that the people of the States acceded to the Union, it may be more plausibly argued that they may secede from it. If, in adopting the Constitution, nothing was done but acceding to a compact, nothing would seem necessary, in order to break it up, but to secede from the same compact. But the term is wholly out of place. Accession, as a word applied to political associations, implies coming into a league, treaty, or confederacy, by one hitherto a stranger to it; and secession implies departing from such league or confederacy. The people of the United States have used no such form of expression in establishing the present Government."55
Repeating and reiterating in many forms what is substantially the same idea, and attributing the use of the terms which he attacks to an ulterior purpose, Mr. Webster says:
"This is the reason, sir, which makes it necessary to abandon the use of constitutional language for a new vocabulary, and to substitute, in the place of plain, historical facts, a series of assumptions. This is the reason why it is necessary to give new names to things; to speak of the Constitution, not as a constitution, but as a compact; and of the ratifications by the people, not as ratifications, but as acts of accession."56
In these and similar passages, Mr. Webster virtually concedes that, if the Constitution were a compact; if the Union were a confederacy; if the States had, as States, severally acceded to it—all which propositions he denies—then the sovereignty of the States and their right to secede from the Union would be deducible.
Now, it happens that these very terms—"compact," "confederacy," "accede," and the like—were the terms in familiar use by the authors of the Constitution and their associates with reference to that instrument and its ratification. Other writers, who have examined the subject since the late war gave it an interest which it had never commanded before, have collected such an array of evidence in this behalf that it is necessary only to cite a few examples.
The following language of Mr. Gerry, of Massachusetts, in the Convention of 1787, has already been referred to: "If nine out of thirteen States can dissolve the compact, six out of nine will be just as able to dissolve the new one hereafter."
Mr. Gouverneur Morris, one of the most pronounced advocates of a strong central government, in the Convention, said: "He came here to form a compact for the good of Americans. He was ready to do so with all the States. He hoped and believed they all would enter into such a compact. If they would not, he would be ready to join with any States that would. But, as the compact was to be voluntary, it is in vain for the Eastern States to insist on what the Southern States will never agree to."57
Mr. Madison, while inclining to a strong government, said: "In the case of a union of people under one Constitution, the nature of the pact has always been understood," etc.58
Mr. Hamilton, in the "Federalist," repeatedly speaks of the new government as a "confederate republic" and a "confederacy," and calls the Constitution a "compact." (See especially Nos. IX. and LXXXV.)
General Washington—who was not only the first President under the new Constitution, but who had presided over the Convention that drew it up—in letters written soon after the adjournment of that body to friends in various States, referred to the Constitution as a compact or treaty, and repeatedly uses the terms "accede" and "accession," and once the term "secession."
He asks what the opponents of the Constitution in Virginia would do, "if nine other States should accede to the Constitution."
Luther Martin, of Maryland, informs us that, in a committee of the General Convention of 1787, protesting against the proposed violation of the principles of the "perpetual union" already formed under the Articles of Confederation, he made use of such language as this:
"Will you tell us we ought to trust you because you now enter into a solemn compact with us? This you have done before, and now treat with the utmost contempt. Will you now make an appeal to the Supreme Being, and call on Him to guarantee your observance of this compact? The same you have formerly done for your observance of the Articles of Confederation, which you are now violating in the most wanton manner."59
It is needless to multiply the proofs that abound in the writings of the "fathers" to show that Mr. Webster's "new vocabulary" was the very language they familiarly used. Let two more examples suffice, from authority higher than that of any individual speaker or writer, however eminent—from authority second only, if at all inferior, to that of the text of the Constitution itself—that is, from the acts or ordinances of ratification by the States. They certainly ought to have been conclusive, and should not have been unknown to Mr. Webster, for they are the language of Massachusetts, the State which he represented in the Senate, and of New Hampshire, the State of his nativity.
The ratification of Massachusetts is expressed in the following terms:
"COMMONWEALTH OF MASSACHUSETTS.
"The Convention, having impartially discussed and fully considered a Constitution for the United States of America, reported to Congress by the convention of delegates from the United States of America, and submitted to us by a resolution of the General Court of the said Commonwealth, passed the 25th day of October last past, and acknowledging with grateful hearts the goodness of the Supreme Ruler of the universe, in affording the people of the United States, in the course of his Providence, an opportunity, deliberately and peaceably, without fraud or surprise, of entering into an explicit and solemn COMPACT with each other, by assenting to and ratifying a new Constitution, in order to form a more perfect Union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to themselves and their posterity—do, in the name and in behalf of the people of the Commonwealth of Massachusetts, assent to and ratify the said Constitution for the United States of America."
The ratification of New Hampshire is expressed in precisely the same words, save only the difference of date of the resolution of the Legislature (or "General Court") referred to, and also the use of the word "State" instead of "Commonwealth." Both distinctly accept it as a compact of the States "with each other"—which Mr. Webster, a son of New Hampshire and a Senator from Massachusetts, declared it was not; and not only so, but he repudiated the very "vocabulary" from which the words expressing the doctrine were taken.
It would not need, however, this abounding wealth of contemporaneous exposition—it does not require the employment of any particular words in the Constitution—to prove that it was drawn up as a compact between sovereign States entering into a confederacy with each other, and that they ratified and acceded to it separately, severally, and independently. The very structure of the whole instrument and the facts attending its preparation and ratification would suffice. The language of the final article would have been quite enough: "The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same." This is not the "language" of a superior imposing a mandate upon subordinates. The consent of the contracting parties is necessary to its validity, and then it becomes not the acceptance and recognition of an authority "over" them—as Mr. Motley represents—but of a compact between them. The simple word "between" is incompatible with any other idea than that of a compact by independent parties.
If it were possible that any doubt could still exist, there is one provision in the Constitution which stamps its character as a compact too plainly for cavil or question. The Constitution, which had already provided for the representation of the States in both Houses of Congress, thereby bringing the matter of representation within the power of amendment, in its fifth article contains a stipulation that "no State, without its [own] consent, shall be deprived of its equal suffrage in the Senate." If this is not a compact between the States, the smaller States have no guarantee for the preservation of their equality of representation in the United States Senate. If the obligation of a contract does not secure it, the guarantee itself is liable to amendment, and may be swept away at the will of three fourths of the States, without wrong to any party—for, according to this theory, there is no party of the second part.
Footnote 52: (return)Gales and Seaton's "Register of Congressional Debates," vol. vi, Part I, p. 93.
Footnote 53: (return)The words "with another State or with a foreign power" should have been added to make this statement accurate.
Footnote 59: (return)Luther Martin's "Genuine Information," in Wilbur Curtiss's "Secret Proceedings and Debates of the Convention," p. 29.
Sovereignty.
"The term 'sovereign' or 'sovereignty,'" says Judge Story, "is used in different senses, which often leads to a confusion of ideas, and sometimes to very mischievous and unfounded conclusions." Without any disrespect for Judge Story, or any disparagement of his great learning and ability, it may safely be added that he and his disciples have contributed not a little to the increase of this confusion of ideas and the spread of these mischievous and unfounded conclusions. There is no good reason whatever why it should be used in different senses, or why there should be any confusion of ideas as to its meaning. Of all the terms employed in political science, it is one of the most definite and intelligible. The definition of it given by that accurate and lucid publicist, Burlamaqui, is simple and satisfactory—that "sovereignty is a right of commanding in the last resort in civil society."60 The original seat of this sovereignty he also declares to be in the people. "But," he adds, "when once the people have transferred their right to a sovereign [i.e., a monarch], they can not, without contradiction, be supposed to continue still masters of it."61 This is in strict accord with the theory of American republicanism, the peculiarity of which is that the people never do transfer their right of sovereignty, either in whole or in part. They only delegate to their governments the exercise of such of its functions as may be necessary, subject always to their own control, and to reassumption whenever such government fails to fulfill the purposes for which it was instituted.
I think it has already been demonstrated that, in this country, the only political community—the only independent corporate unit through which the people can exercise their sovereignty, is the State. Minor communities—as those of counties, cities, and towns—are merely fractional subdivisions of the State; and these do not affect the evidence that there was not such a political community as the "people of the United States in the aggregate."
That the States were severally sovereign and independent when they were united under the Articles of Confederation, is distinctly asserted in those articles, and is admitted even by the extreme partisans of consolidation. Of right, they are still sovereign, unless they have surrendered or been divested of their sovereignty; and those who deny the proposition have been vainly called upon to point out the process by which they have divested themselves, or have been divested of it, otherwise than by usurpation.
Since Webster spoke and Story wrote upon the subject, however, the sovereignty of the States has been vehemently denied, or explained away as only a partial, imperfect, mutilated sovereignty. Paradoxical theories of "divided sovereignty" and "delegated sovereignty" have arisen, to create that "confusion of ideas" and engender those "mischievous and unfounded conclusions," of which Judge Story speaks. Confounding the sovereign authority of the people with the delegated powers conferred by them upon their governments, we hear of a Government of the United States "sovereign within its sphere," and of State governments "sovereign in their sphere"; of the surrender by the States of part of their sovereignty to the United States, and the like. Now, if there be any one great principle pervading the Federal Constitution, the State Constitutions, the writings of the fathers, the whole American system, as clearly as the sunlight pervades the solar system, it is that no government is sovereign—that all governments derive their powers from the people, and exercise them in subjection to the will of the people—not a will expressed in any irregular, lawless, tumultuary manner, but the will of the organized political community, expressed through authorized and legitimate channels. The founders of the American republics never conferred, nor intended to confer, sovereignty upon either their State or Federal Governments.
If, then, the people of the States, in forming a Federal Union, surrendered—or, to use Burlamaqui's term, transferred—or if they meant to surrender or transfer—part of their sovereignty, to whom was the transfer made? Not to "the people of the United States in the aggregate"; for there was no such people in existence, and they did not create or constitute such a people by merger of themselves. Not to the Federal Government; for they disclaimed, as a fundamental principle, the sovereignty of any government. There was no such surrender, no such transfer, in whole or in part, expressed or implied. They retained, and intended to retain, their sovereignty in its integrity—undivided and indivisible.
"But, indeed," says Mr. Motley, "the words 'sovereign' and 'sovereignty' are purely inapplicable to the American system. In the Declaration of Independence the provinces declare themselves 'free and independent States,' but the men of those days knew that the word 'sovereign' was a term of feudal origin. When their connection with a time-honored feudal monarchy was abruptly severed, the word 'sovereign' had no meaning for us."62
If this be true, "the men of those days" had a very extraordinary way of expressing their conviction that the word "had no meaning for us." We have seen that, in the very front of their Articles of Confederation, they set forth the conspicuous declaration that each State retained "its sovereignty, freedom, and independence."
Massachusetts—the State, I believe, of Mr. Motley's nativity and citizenship—in her original Constitution, drawn up by "men of those days," made this declaration:
"The people inhabiting the territory formerly called the Province of Massachusetts Bay do hereby solemnly and mutually agree with each other to form themselves into a free, sovereign, and independent body politic, or State, by the name of The Commonwealth of Massachusetts."
New Hampshire, in her Constitution, as revised in 1792, had identically the same declaration, except as regards the name of the State and the word "State" instead of "Commonwealth."
Mr. Madison, one of the most distinguished of the men of that day and of the advocates of the Constitution, in a speech already once referred to, in the Virginia Convention of 1788, explained that "We, the people," who were to establish the Constitution, were the people of "thirteen SOVEREIGNTIES."63
In the "Federalist," he repeatedly employs the term—as, for example, when he says: "Do they [the fundamental principles of the Confederation] require that, in the establishment of the Constitution, the States should be regarded as distinct and independent SOVEREIGNS? They are so regarded by the Constitution proposed."64
Alexander Hamilton—another contemporary authority, no less illustrious—says, in the "Federalist":
"It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union."65
In the same paragraph he uses these terms, "sovereign" and "sovereignty," repeatedly—always with reference to the States, respectively and severally.
Benjamin Franklin advocated equality of suffrage in the Senate as a means of securing "the sovereignties of the individual States."66 James Wilson, of Pennsylvania, said sovereignty "is in the people before they make a Constitution, and remains in them," and described the people as being "thirteen independent sovereignties."67 Gouverneur Morris, who was, as well as Wilson, one of the warmest advocates in the Convention of a strong central government, spoke of the Constitution as "a compact," and of the parties to it as "each enjoying sovereign power."68 Roger Sherman, of Connecticut, declared that the Government "was instituted by a number of sovereign States."69 Oliver Ellsworth, of the same State, spoke of the States as "sovereign bodies."70 These were all eminent members of the Convention which formed the Constitution.
There was scarcely a statesman of that period who did not leave on record expressions of the same sort. But why multiply citations? It is very evident that the "men of those days" entertained very different views of sovereignty from those set forth by the "new lights" of our day. Far from considering it a term of feudal origin, "purely inapplicable to the American system," they seem to have regarded it as a very vital principle in that system, and of necessity belonging to the several States—and I do not find a single instance in which they applied it to any political organization, except the States.
Their ideas were in entire accord with those of Vattel, who, in his chapter "Of Nations or Sovereign States," writes, "Every nation that governs itself, under what form soever, without any dependence on foreign power, is a sovereign state."71
In another part of the same chapter he gives a lucid statement of the nature of a confederate republic, such as ours was designed to be. He says:
"Several sovereign and independent states may unite themselves together by a perpetual confederacy, without each in particular ceasing to be a perfect state. They will form together a federal republic: the deliberations in common will offer no violence to the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfill the engagements into which he has very willingly entered."72
What this celebrated author means here by a person, is explained by a subsequent passage: "The law of nations is the law of sovereigns; states free and independent are moral persons."73
Footnote 60: (return)"Principes du Droit Politique," chap. v, section I; also, chap. vii, section 1.