Volume I Part 13 (1/2)
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.
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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 punis.h.i.+ng 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.
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CHAPTER X.
A Recapitulation.-Remarkable Propositions of Mr. Gouverneur Morris in the Convention of 1787, and their Fate.-Further Testimony.-Hamilton, Madison, Was.h.i.+ngton, 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.