THE NATURE OF THE UNION NOT CHANGED UNDER THE CONSTITUTION ULTIMATE SOVEREIGNTY UNDER IT RESIDES WHERE IT DID UNDER THE CONFEDERATION JUDGE STORY ON THE FIRST RESOLUTION OF THE FEDERAL CONVENTION THE CONSTITUTION, AS THE CONFEDERATION, IS A GOVERNMENT OF STATES AND FOR STATES THIS APPEARS FROM THE PREAMBLE ITSELF THE UNION OF THE STATES WAS CONSOLIDATED BY THE CONSTITUTION, AND NOT ABROGATED AS IT WOULD HAVE BEEN BY A GENERAL MERGER OF THE STATE SOVEREIGNTIES IT FORMS A CONFEDERATED REPUBLIC SUCH A REPUBLIC IS FORMED BY THE UNION OF SEVERAL SMALLER REPUBLICS EACH RESPECTIVELY PUTTING LIMITED RESTRAINTS UPON THEMSELVES BY VOLUNTARY ENGAGEMENTS WITHOUT ANY IMPAIRMENT OF THEIR SEVERAL SOVEREIGNTIES, ACCORDING TO MONTESQUIEU AND VATTEL.
MR. STEPHENS. Well, Professor, I believe we are all ready for your views upon the subjects discussed in our last talk upon the nature of the Government of the United States. I hope you are in good condition after a night's rest. You had something to say in answer to my last question, when we adjourned yesterday evening.
PROF. NORTON. Yes. You asked if there was any change of Sovereignty effected by the Constitution, or, in other words, as I understood your question, whether the States, severally, did not retain their ultimate absolute Sovereignty under the Constitution, as fully and completely, as they did under the Articles of Confederation?
MR. STEPHENS. Certainly, that was the purport of my question.
PROF. NORTON. To this I replied, that I thought there was a change, and a radical change, in this respect, in the New Constitution from the Old, as you call it. In presenting my views on this point I, too, will premise so far as to say, that I never did agree with Judge Story in his historical account of the Declaration of Independence, and his argument founded thereon, that the people of the United States became one nation at that time, or during their Colonial existence. I have always agreed with Mr. Curtis and Mr. Motley, that the Declaration of Independence was made by the Colonies jointly, but for the independence of each separately. That they were so acknowledged to be separate Independent Sovereign States by Great Britain, in the Treaty of Peace, and that the first Union formed by the States, during their common struggle for that separate independence, was a Confederation between distinct separate Sovereign Powers. Further, that that Union was a Confederation of States. It was a bare League, founded upon Compact between distinct Powers, acknowledging each other to be Sovereign in all respects whatsoever; and I also hold it to be true, that the Convention of 1787 was called with the sole view of revising those articles of Union between the States for the purpose of making it a firm National Government between them as States for all external purposes, without changing the Federative basis of the Union. I do not question the material facts of our history as far as you have gone; nor can it be questioned that the States, in responding to this call for the Convention, understood it in that light. This, their respective responses, you have collated and read, conclusively show. But my position is, that after the Convention met, upon a conference and a free interchange of views with themselves, they found the defects in the old system to be so numerous and thorough (extending not only to the want of power in Congress to regulate trade, and the power to pass laws to operate directly on the people of the States in the collection of revenue, without resorting to requisitions on the States in their corporate or political capacities, but running through the whole system), that it was necessary, in order to do any thing efficiently, to abandon their instructions entirely, and with them, to abandon all idea of remodelling the Confederation. With these views and under these convictions, as I understand it, they determined to form and present to the whole American people a plan of government for them as one people or Nation, based upon the principle of a social Compact, and not upon any idea of a Compact between States, as the Articles of Confederation were, at that, time, universally acknowledged to be. In other words, the Convention, as I maintain, came to the conclusion that the only cure or remedy for the innumerable defects; and evils of the Articles of Confederation was a total abandonment of them, and all ideas of any government founded upon Compact between States, and to substitute in lieu of it a government of the whole people of all the States as one Nation.
My views on this subject are very well expressed by Mr. Motley, in that part of his article which you have referred to, but did not read. Here it is:
"But there were patriotic and sagacious men in those days, and their efforts at last rescued us from the condition of a Confederacy. The Constitution of the United States was an organic law, enacted by the Sovereign people of that whole territory, which is commonly called, in geographies and histories, the United States of America. It was empowered to act directly, by its own Legislative, Judicial, and Executive machinery, upon every individual in the country. It could seize his property, It could take his life, for causes of which itself was the Judge. The States were distinctly prohibited from opposing its decree or from exercising any of the great functions of Sovereignty. The Union alone was supreme, any thing in the Constitution and laws of the State to the contrary notwithstanding. Of what significance, then, was the title of 'Sovereign' States, arrogated, in later days, by communities which had voluntarily abdicated the most vital attributes of Sovereignty? * * *
"It was not a Compact. Whoever heard of a Compact to which there were no parties? or, whoever 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, acting through Conventions of Delegates, expressly chosen for the purpose within each State, independently of the State Governments, after the project had been framed."
This position of Mr. Motley, in the main, accords with my own, and it perfectly accords with another statement of Judge Story, with which I do fully agree, also; and that is when he says: "In the Convention that formed the Constitution of the United States, the first Resolution adopted by that body was 'that a National Government ought to be established, consisting of a Supreme, Legislative, Judiciary, and Executive.' And from this fundamental proposition sprung the subsequent organization of the whole Government of the United States." "It is then our duty (says Judge Story) to examine and consider the grounds on which this proposition rests, since it lies at the bottom of all our Institutions, State as well as National." I read from vol. ii, Book iii, ch. vii, § 518. I will not ask you to reply to me specially, but what reply have you to make to these positions of Mr. Motley and Judge Story. What say you to Judge Story's argument on this view of the subject?
MR. STEPHENS. In the first place I say, I am no less amazed at the statement of Judge Story, in the extract you have just read, than I was at the statement in the extract read by Judge Bynum from him before. It is, indeed, wonderful to me how Judge Story could have said, that from the first resolution passed by the Convention, which he quotes correctly, and which he speaks of as a fundamental proposition, the subsequent organization of the whole Government of the United States sprung. I shall show you, most conclusively, that this statement, and the whole argument built upon it, by him or others, have just as little ground to stand upon as his other statement and argument had, by your own admission. He says it is our duty to examine and consider the grounds on which this (his fundamental proposition) rests. Let us then so examine and so consider it, since in his judgment and yours it seems it lies at the bottom of all our Institutions, State as well as National. It certainly does lie at the bottom of his as well as your whole argument attempting to show that the Constitution of the United States established a National and not a Federal Government, and that it is not a Compact between Sovereign States.
Now, what grounds has this argument or consideration of the subject to rest upon? These and these only: The first Resolution passed by the Convention was as Judge Story states it, but it was not the first acted upon. It was the last of a series of three. The Convention was in committee of the whole, having under consideration a plan of Government, submitted by Governor Randolph, of Virginia. The series of Resolutions, of which the one alluded to by Judge Story is the last, was offered by Gouverneur Morris, of Pennsylvania, to be substituted in lieu of the first Resolution in the plan offered by Governor Randolph. Here are these Resolutions constituting this series:*
"1. Resolved, That a Union of the States, merely Federal, will not accomplish the objects proposed by the Articles of Confederation, namely, common defence, security of liberty, and general welfare.
"2. Resolved, That no treaty or treaties among any of the States, as Sovereign, will accomplish or secure their common defence, liberty, or welfare.
3. Resolved, That a National Government ought to be established, consisting of a supreme Judicial, Legislative, and Executive."
The first two of these resolutions were not agreed to. It was said, that if the first of this series of resolutions was agreed to, the business of the Convention was at an end. The first two, therefore, were dropped. The last was taken up and adopted but how adopted or in what sense, very clearly appears from Mr. Yates's account of it. "This last Resolve," he says, "had also its difficulties; the term supreme required explanation. It was asked, whether it was intended to annihilate State Governments? It was answered, only so far, as the powers intended to be granted to the new Government, should clash with the States, when the latter were to yield."
* Elliot's Debates, vol. i, p. 391. Madison Papers vol. ii, p. 747.
Elliot's Debates, vol. i, p. 392.
The resolution, with this explanation and understanding, then passed in Committee, eight States only being present. But the refusal of the Committee to agree to the other two, or, rather, their abandonment without a division, shows very clearly, to all fair and right-thinking minds, that it was not the intention of the Convention, by the adoption of this third resolution in Committee, to abandon the Federal system, and institute a National Government, as Judge Story argues; and that the Convention did not intend or indicate any purpose, thereby, to travel out of, or beyond their powers, which confined them, in the main, to the sole purpose of revising and amending the terms of their Union, on the basis of a Confederation of Sovereign States. Now, when these first two resolutions, which contained the gist of the whole question, had been abandoned without a count, it is easy to conceive how any one might have supposed that the object of this resolution, after the explanation given, was barely to declare that such changes in the Articles of Confederation were intended by it, as Mr. Jefferson had foreshadowed that is, that, in the changes to be made, there should be a division, in the powers delegated, into Legislative, Judicial and Executive, without any departure from the Federal basis of the Union. This is, also, strengthened by the fact that Delaware voted for the resolution. It is well known that that State never would have voted for the resolution, with the construction put upon its words which Judge Story puts upon them. The introduction of the word National may not have struck the minds of the Delegates from Delaware and others, as bearing, or being intended to bear, the import now sought to be given to it, or which, upon close scrutiny, legitimately belongs to it. National was a word often loosely used in application to the Government under the Confederation, and even by the strictest adherents to the Sovereignty of the States. In the letter read yesterday from Mr. Jefferson, he spoke of the Government being so modelled as to make us one Nation as to all foreign powers, and yet separate and distinct Nations, as to ourselves. This Unity, or Nationality, as to foreign powers, was to be founded upon a Federal basis or Compact between the internal Nationalities. It is no strain of presumption, therefore, to suppose that this word was understood in this sense by many who voted for the resolution as adopted.
But the great controlling fact in the case, one that removes every particle of ground upon which Judge Story builds his entire theory of the Government, is, that subsequently, on the 20th of June, when the report of the Committee of the Whole was before the Convention, for consideration; after the whole plan, submitted by Governor Randolph, had been gone through with; after the ideas and objects of the members, generally, had been developed; and after the bearing of this word National, or the sense in which some used it, had been fully disclosed, and when eleven States were present, it was moved, by Mr. Ellsworth, of Connecticut, to strike out this resolution, that had been previously agreed to, as before stated, and to insert the following:
"Resolved, That the Government of the United States ought to consist of a Supreme Legislative, Judiciary and Executive."*
* Elliot's Debates, vol. i, p. 183.
This resolution was agreed to; and, after this action of the Convention upon this resolution, the word "National," wherever it occurred, throughout Governor Randolph's whole plan, was stricken out, and the "Government of the United States," or its equivalent, inserted. So, the "fundamental proposition," upon which Judge Story built his whole superstructure, is completely knocked from under him. The grounds, upon which it temporarily rested for the short space of twenty-one days, were completely removed by the Convention itself. The truth is, the debates between the 30th of May and the 20th of June, had disclosed the fact that there were quite a number of Delegates in the Convention, who were in favor of doing what Judge Story would make the impression, or seems really to think, that they had done. They were, as clearly appears from Gouverneur Morris's first resolution, for doing away with the Federal system entirely, and for establishing one great National Government; or, in other words, they were for abandoning the whole idea of a Federal Union, and incorporating the several State Sovereignties into one National Sovereignty.
In this class, none were more prominent or zealous than Governor Randolph and Mr. Madison, of Virginia, Mr. Morris and Mr. Wilson, of Pennsylvania, Mr. King, of Massachusetts, and Mr. Hamilton, of New York. But these differed widely amongst themselves, as to the form of Government which should be instituted upon this National basis. Governor Randolph and Mr. Wilson seemed to have been for a Consolidated Democratic Republic, with two Houses for Legislation, and an Elective Executive. In this view, Mr. Madison concurred. Mr. Hamilton and Mr. Morris were also for one single National Republic, but based upon different principles Some thought their scheme looked toward Monarchy but justice requires it to be stated, that nothing that fell from them, or either of them, in the debates, authorizes such a conclusion. They were all, however, Randolph, Madison, Morris, Hamilton, Wilson and King for a great National Republic, with a total departure from the Federal system. While the Nationals in the Convention were so divided, an overwhelming majority of the Delegates, as well as a majority of the States, were utterly opposed to either of their systems. Nothing could induce them to depart from the Federal system, or cause them to yield the equality of the States, as Sovereigns, in the Union, and the equality of their votes in, all measures that might be passed upon by the new Government, as it was in the old. It was after this disclosure that the States agreed to the resolution of Mr. Ellsworth, to strike out "National Government," wherever it occurred in Governor Randolph's plan, and substitute for it, "Government of the United States." It was thus settled by the Convention, in their final action upon this very first resolution, that the work of their hands, whatever might be its details, was to be a plan, or organization, or Constitution, or Articles of Compact, call you it what you may, of a Government of States, of Sovereign States, formed and instituted by States and for States.
JUDGE BYNUM. You do not mean to say that the Government of the United States, under the Constitution as it was adopted, is nothing but a Government of States and for States?
Mr. STEPHENS. I mean to say that it is a Government instituted by States and for States, and that all the functions it possesses, even in its direct action on the individual citizens of the several States, spring from and depend upon a Compact between the States constituting it. It is, therefore, a Government of States and for States. The final action upon the very first resolution, as we have seen, shows that the object of the Convention was to form a Government of States. "The Government of the United States" ought to consist, they declared, "of a Supreme Legislature, Judiciary and Executive." This is the same as if they had declared "the Government of the States United, ought to consist," etc. The first Constitution, we have seen, was a Government of States. The States in Congress assembled passed all laws, made all treaties, and exercised all powers vested in them jointly. No measure could be passed without the equal voice of each State, however small. Delaware had the same influence as New York, Massachusetts, or Virginia, and in this respect I maintain there is no essential change in the new Constitution. Examine it! Sift it, and dissect it as you may, and you will find it to be nothing but a Government of States, as much so, in principle, as the old Confederation. The powers to be exercised by the States jointly, Legislatively, Judicially, and Executively, have been enlarged, and it does not require so many States now to determine many questions as before; but under the present Constitution no measure can be passed, nc law can be enacted, if a majority of the States oppose it.
JUDGE BYNUM. Why, Mr. Stephens, that is a most extraordinary position.
MR. STEPHENS. Extraordinary! My dear sir, is it not undeniably true? Has not each State an equal vote in the Senate? Can any law be passed if a majority of the States in the Senate withhold their sanction? The Senators, two to each State, are selected by the States, severally, in their corporate and Sovereign capacity. Can any treaty be made, if any more than a bare third of the States in the Senate refuse to agree to it? Can any man be appointed to any office of dignity or profit, if a majority of the States in the Senate vote against it? If the Electoral Colleges fail to choose a President, does not the election devolve upon the House of Representatives, where the election is by States, each State casting one vote only? If they fail to elect a Vice President does not the election devolve on the Senate, where no one can be chosen if a majority of the States vote against him? Can the Government be worked at all if a majority of the States in the Senate refuse their co-operation? If a majority of the States were to refuse to elect Senators would not the Government, of necessity, cease to exist? The Supreme Court of the United States has so held. Chief Justice Marshall, delivering the opinion, in the case of Cohens vs. Virginia, uses this language:*
* Peters's Condensed Reports, vol. v, p. 107.
"It is true, that if all the States, or a majority of them, refuse to elect Senators, the Legislative powers of she Union will be suspended!"
Hamilton, in the Convention of New York, when the Constitution was before that body for approval or disapproval, in reply to arguments going to show that the State authorities would be endangered by the powers conferred on the General Government, declared that "the Union is dependent on the will of the State Governments for its Chief Magistrate and for its Senate." "The States," said Mr. Hamilton, "can never lose their powers till the whole people of America are robbed of their liberties." His great mind never gave utterance to a mightier truth!
Elliot's Debates, p. 353.
Is it not entirely proper and correct, therefore, to say, of a Government that cannot be carried on rightfully at all against the will of a majority of the States, that it is a Government of States, and nothing but a Government of States?
JUDGE BYNUM. That is certainly a strong way of putting it, but, then, under the Constitution of the United States, there is a House of Representatives elected by the people of the States according to population. The larger or more populous States, have a great preponderance over the smaller or less populous ones, in that branch of the Congress; and even in the Senate the vote is not taken by States; it is taken per capita. Each Senator may vote as he pleases, and it often happens that the two Senators from a State, vote differently upon the same question; so that a law may pass without a majority of the States voting for it, and a treaty may be ratified without a majority of two thirds of the States voting for it.
MR. STEPHENS. That is also true, but it does not interfere in the least with what I have said, and maintain, that no law or measure can be passed if a majority of the States, through their Senators who represent their Sovereignty, vote against it. Under the system the power is with the States. If the Senators of a State be divided, the voice of that State is simply not heard on the question, exactly as it was under the Confederation, and in the Convention that formed the Constitution.* It is in such case as if the State voluntarily absented herself from the vote, and let the other States decide it. In this there is no change in the new system from the old. Under the Articles of Confederation, when the Delegation from a State was equally divided on any question, the vote of that State was not counted. It had no effect. The States, in forming the new Constitution, did make one concession, and that was that a House of Representatives, to be elected by the people in the several States, in proportion to population, on a certain basis, known ever as the Federal basis, might join in Legislation. But they never did yield their right to an equal vote in the Senate, or, that it might by possibility be without their power as States, to defeat any measure that the popular branch might adopt or pass. In this particular, relating only to the machinery and operation of the system, there is a change in the new Constitution from the old, but none in the principle. The equal voice of all the States, as States, on all questions coming before the Congress of States, now as before, though divided into two Houses, is still retained in the Senate. The right and power of holding a complete and absolute veto in the hands of a majority of the States, over the House, or the popular branch of the Congress, was, and is, retained in the States. This was the great point on which the Convention, that framed the Constitution, came near breaking up without agreeing to any thing. The Nationals, as they were called, insisted upon changing the principle of an equality of votes, on the part of the States, in the Senate. The Federals were willing to yield a change, as to the votes in the House, but would never yield their right to an equal voice in one, or the other of the branches of the Congress. They were determined to maintain an equality of political power in the States severally, in whatever form of Constitution might be adopted. It was at this stage of the proceedings that Dr. Franklin moved for prayers. On the first test vote on the motion to allow each State an equal vote in the Senate, the States stood five for it, and five against it, with one divided.** Eleven States only were present. New Hampshire was absent. It was at this stage of the proceedings, that Mr. Bedford, from Delaware, declared
* Elliot's Debates, vol. v, p. 285.
** Elliot's Debates, vol. i, p. 193.
"That all the States at present are equally Sovereign and Independent, has been asserted from every quarter in this House. Our deliberations here are a confirmation of the position, and I may add to it that each of them acts from interested, and many from ambitious motives. * * * The small States never can agree to the Virginia plan, and why, then, is it still urged? * * Let us then do what is in our power amend and enlarge the Confederation, but not alter the Federal system."
The Virginia plan was Governor Randolph's National plan. It was after this dead lock, to which the Convention had come, between the Nationals and the State Sovereignty advocates, or Federals, as they were then called between those who were in favor of what was called a National Government proper, and those in favor of the continued Union of the several States on a Federal basis a Government National for external purposes, but leaving ultimate Sovereignty with the several States after this speech of Mr. Bedford and like speeches of others after it was seen that nothing could be done on the National line, that a Grand Committee was raised, consisting of one Member from each State, to see if any Compromise could be effected. The Committee consisted of Mr. Gerry, of Massachusetts, Mr. Ellsworth, of Connecticut, Mr. Yates, of New York, Mr. Patterson, of New Jersey, Dr, Franklin, of Pennsylvania, Mr. Bedford, of Delaware, Mr. Martin, of Maryland, Mr. Davie, of North Carolina, Mr. Rutledge, of South Carolina, and Mr. Baldwin, of Georgia.
Mr. Yates has given an exceedingly interesting account of the proceedings of this Grand Committee.* "The Grand Committee," says he, "met July 3d. Mr. Gerry was chosen Chairman. The Committee proceeded to consider in what manner they should discharge the business with which they were intrusted. By the proceedings in the Convention, they were so equally divided on the important question of representation in the two branches, that the idea of a conciliatory adjustment must have been in contemplation of the House in the appointment of this Committee. But still, how to effect this salutary purpose was the question. Many of the members, impressed with the utility of a General Government, connected with it the indispensable necessity of a representation from the States according to their numbers and wealth; while others, equally tenacious of the rights of the States, would admit of no representation but such as was strictly Federal, or, in other words, equality of suffrage. This brought on a discussion of the principles on which the House had divided, and a lengthy recapitulation of the arguments advanced in the House in support of these opposite propositions. As I had not openly explained my sentiments on any former occasion on this question, but constantly, in giving my vote, showed my attachment to the National Government on Federal principles, I took this occasion to explain my motives.
* Elliot's Debates, vol. i, p. 477.
"These remarks gave rise to a motion of Dr. Franklin, which, after some modification, was agreed to, and made the basis of the following report of the Committee:
"'The Committee to whom was referred the eighth resolution reported from the Committee of the whole House, and so much of the seventh as had not been decided on, submit the following report:
"'That the subsequent propositions be recommended to the Convention, on condition that both shall be generally adopted.
"'That in the first branch of the Legislature, each of the States now in the Union be allowed one member for every forty thousand inhabitants of the description reported in the seventh resolution of the Committee of the whole House. That each State, not containing that number, shall be allowed one member.
"'That bills for raising or apportioning money, and for fixing salaries of tile officers of Government of the United States, shall originate in the first branch of the Legislature, and shall not be altered or amended by the second branch; and that no money shall be drawn from the public treasury but in pursuance of appropriations to be originated in the first branch.
"'That in the second branch of the Legislature, each State shall have an equal vote.'"
This report was the basis of the great compromise, as it was called, between the two distinct parties in the Convention the Nationals and the Federals. It discloses the nature and the extent of the contest. At first it would seem that it was a fair adjustment of the question not so thought the vigilant sentinels and guardians of the Sovereignty of the States; for it conceded the absolute power of the popular branch of the Congress over the States in the Senate on one class of measures. That a majority of the States would not yield. The right of the States to hold an absolute negative in their own hands, in all cases, they would not give up. The first part of this report after being discussed, and after it was
ascertained that it could never receive the sanction of a majority of the States, was recommitted to a committee,of five. Their report was also discussed, and likewise failed to receive the sanction of a majority of the States. The subject was then recommitted to another Grand Committee, consisting of one from each State, whose final report was agreed to. That fixed the number of members to which each State should be entitled in the first house of Representatives, and provided for future apportionments according to population, etc., as it stands in the Constitution. The clause in the first report, that gave the House of Representatives absolute power over money, bills, etc., was abandoned. The latter part of the first report, securing to the States severally an equal vote in the Senate, was not touched afterwards. It stood as first reported, that in the Senate, or second branch of the Congress, each State should have an equal vote. This, however, was not finally adopted without another struggle. Before the question was taken on agreeing to it, it was moved that instead of an equality of votes, the States should be represented in the second branch as follows: New Hampshire, by two members; Massachusetts, four; Rhode Island, one; Connecticut, three; New York, three; New Jersey, two; Pennsylvania, four; Delaware, one; Maryland, three; Virginia, five; North Carolina, three; South Carolina, three; Georgia, two; making, in the whole, thirty-six."*
* Elliot's Debates, vol. i, p. 205.
This, by several, was thought to be a fair settlement of the dispute, allowing the Sovereign States still to be represented as such, but not equally. Mr. Wilson, Mr. Madison, and the Nationals generally, favored it as a last hope of getting as near what they desired as possible. Some of the Federals were not disinclined to accede to it as a compromise; amongst these was Mr. Gerry, of Massachusetts; but not so the unyielding advocates of State Sovereignty. "Mr. Ellsworth asked two questions: one of Mr. Wilson, whether he had ever seen a good measure fail in Congress for want of a majority of the States in its favor; the other of Mr. Madison, whether a negative lodged with the majority of the States, even the smallest could be more dangerous than the qualified negative proposed to be lodged in a single Executive Magistrate, who must be taken from some one State."*
* Madison Papers, vol. ii, p. 1106.
"Mr. Sherman, of Connecticut, urged the equality of votes, not so much as a security for the small States as for the State Governments, which could not be preserved unless they were represented."
Madison Papers, vol. ii, p. 1098
"Mr. Dayton declared the smaller States can never give up their equality; for himself, he would in no event yield that security for their rights."
Madison Papers, vol. ii, p. 1098.
"Dr. Johnson, of Connecticut, would consent for numbers to be represented in the one branch, but the States must be in the other."§
§ Madison Papers, vol. ii, p. 987.
So the final report of the Second Grand Committee on this subject was adopted, which retained to the States an equal vote in the Senate, the same equality under the new Constitution which they had under the former Articles of Confederation. It was well ascertained that without this security the smaller States would not confederate further upon any basis; and that all attempts, at remodelling the Confederation would inevitably fail unless all views of getting them to surrender this right were abandoned. They were so abandoned. The complete negative of a majority of the States in the Senate was retained. So the bond of this "more perfect Union" was written. In this, as in the old, each State, as a State, has an equal vote in the last resort upon all measures.*
* Mr. Bancroft maintains that the idea which formed the basis of this Great Compromise of the Constitution, as he calls it, originated with Mr. Jefferson. In the adoption of the Articles of Confederation, in 1776-7, there was no little difficulty encountered in establishing the rule of voting in Congress some insisting that the vote should be by Delegates per capita, and some by Colonies alone, without respect to numbers or wealth each Colony to have an equal vote on all questions. This is the way it was then settled; but in referring to the debates then had, Mr. Bancroft gives this account of it: "The vote, said Sherman, of Connecticut, should be taken two ways call the Colonies, and call the individuals, and have a majority of both. This idea he probably derived from Jefferson, who enforced in private, as the means to save the Union, that any proposition might be negatived by the Representatives of a majority of the people, or of a majority of the Colonies. Here is the thought out of which the great compromise of our Constitution was evolved." Bancroft, vol. ix, p. 53.
Mr. Curtis, in his "History of the Constitution," speaking of this feature in the Constitution, says: "It is a part of the Constitution which it is vain to try by any standard of theory; for it was the result of a mere compromise of opposite theories and conflicting interests." It was, without question, a compromise between the contending parties in the Convention, to the extent that the unyielding advocates of a strictly Federal system did, by it, consent to a Popular Representation from the several States, in the House, but with the full reservation, on the part of the States, of a complete and absolute negative, in the Senate, on all the acts of the popular Branch thus conceded; and it is utterly vain to attempt, by any bare theory or speculation, to make any thing else of it. This feature, itself, conclusively establishes the Federal character of the Government not upon any theory, but by the "inexorable logic" of the fact itself. It, moreover, totally annihilates all bare theories or speculations, however ingeniously put forth, in whatever speciousness of garb or rhetoric, going to show that the Government of the United States is a Government of the People of the Whole Country, as one community or Nation.
Curtis on the Constitution, vol. ii, p. 167.
Upon such a theory, what a caricature of a National Representative Government it would be! Just consider its structure a moment under such a theory! The six New England States, Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut and Vermont, according to the census of 1860, had a population, all together, of three millions one hundred and thirty-five thousand three hundred and eighty-three. New York, alone, by the same census, had a population of three millions eight hundred and eighty thousand seven hundred and thirty-five! This single State had over a half a million more population than the other six, all together! And yet, under the Constitution, the three millions of people in these six States have six times the power in the Government that the three millions and a half have who are in New York. Or take another view. This little over three millions of people, in these six New England States, have just as much power in the Administration of the Government as the thirteen and a half millions have who constitute the aggregate population of the six States of New York, Pennsylvania, Virginia, Ohio, Indiana and Illinois. That is, they have just as much power in passing or defeating any measure whatever.
All this is perfectly consistent with the fact of its being a strictly Federal Government, limited, in its action, to strictly Federal objects. But, upon the supposition, idea, or theory, that it is a Government of the entire population of the United States, as one community or Nation, with control over internal State affairs, the whole matchless framework of our ancestors the Constitution which, as it was made, deserves the just admiration of the world would become, in its practical workings, nothing but a frightful political monstrosity! Well might the New England States, looking to no higher motives than their interest and power, be satisfied to have such a theory established, so long as they could hold on to the present structure. If that theory, however, should, unfortunately for Public Liberty, ever be established, a Reconstruction, of a very different character from that we now hear so much about, will, sooner or later, be inevitable!
But, no, sirs; this is not a Government of the People of this Country as one Nation.
It is still, under the Constitution, as it was under the Articles of Confederation, a Government of States, and for States. It was so agreed to in the Convention. It was so nominated in the bond. It was so submitted to the States for their approval and ratification, and not to the people of the whole country, in the aggregate, as you, with Mr. Motley and others, maintain; but it was so submitted to the States, in their political organizations, and by them, as States, it was so agreed to and ratified. Each State retained the absolute power to govern its own people in its own way, in all their domestic relations, without any interference by the people of the other States, or the Federal Government, except in the specified cases set forth in the Constitution.
PROF. NORTON. Why, does not the Preamble to the Constitution say: "We, the people of the United States," etc., and does not this show clearly that it was submitted to the whole people, and by them acted upon, ratified and adopted, and not by the States, as States?
MR. STEPHENS. My dear sir, it shows no such thing; and it is a wonder to me how any one should ever have entertained such an idea.
PROF. NORTON. Why, does it not say: "We, the people of the United States, in order to form a more perfect Union," etc?
MR. STEPHENS. Yes; but what is the meaning of "We, the people of the United States," as they here stand? The meaning and sense of words must always be understood from the connection in which they are found. We have abundant and conclusive evidence that they could not have been intended to mean, in the connection where they here stand, what you would have them imply. Because, the very authority of the Delegates their credentials which, we have seen, stated that what they should do, should be referred back to the States, should be submitted to them, and should not be binding, unless approved by them, severally and respectively. And, besides, we know that this preamble, as it unanimously passed the Convention, on the 7th of August, 1787, was in these words: *
* Elliot's Debates, vol. i, p. 230.
"We, the people of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, do ordain, declare, and establish the following Constitution," etc.
This shows what was the meaning of the Convention. It was we the people of each State. The change in the phraseology was made by a sub-committee on style, not by the Convention, except in their agreement to the Report of said committee. Why was it made? For a very obvious
reason. It was not known which of the States would ratify it. Hence it was exceedingly inappropriate to set forth in advance the States by name. By the terms of the Constitution, Article VII,* it was to go into operation between such of the States as might ratify it, if as many as nine or more should do so. The committee on style readily perceived that it would be exceedingly out of place, to have, in the preamble to the organic law, terms embracing a people, or States, who might not put themselves under it. For instance, Rhode Island and North Carolina did not ratify the Constitution for some time. During this period they were entirely out of the Union. They might have remained out until now. Suppose they had. How oddly would this preamble to the Constitution have read: "We the people of New Hampshire, Rhode Island, North Carolina, etc., in order to form a more perfect Union," etc., when the people of Rhode Island and North Carolina had done no such thing. To preserve symmetry in their work, and retain the same idea was what the Committee did in their change of phraseology. As they put it, it would embrace the people of such States only as should adopt it. They would then be the people of the States, respectively, which would thereby be United. States United and United States mean the same thing.
* See Appendix C.
Upon a close scrutiny of the change of language in the Preamble, as it was at first adopted by the Convention, and as it was reported by the committee on style, some exceedingly interesting views are suggested, but these are far from favoring the inference usually drawn from it. Let me call your special attention to them, for they have a direct and important bearing upon the point now before us. The words, as agreed to at first, in Convention, as we have seen, were:
"We, the people of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, do ordain, declare, and establish the following Constitution for the government of ourselves and our posterity."*
* Elliot's Debates, vol. i, p. 231.
Now look closely to the words substituted, and weigh nicely the import of the words left out, as well as those inserted. As the clause was changed by the committee on style, and afterwards unanimously adopted in the Convention, it reads as follows:
"We, the people of the United States, in order to form a more perfect' Union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."
Elliot's Debates, vol. i, p. 298.
The most striking difference in phraseology between the two, is that which sets forth the object in forming "a more perfect Union," etc., to be, to "ordain and establish this Constitution," not for the people in any sense, but for States as political societies. As the words originally stood, the inference might have been drawn from the bare words themselves, that the object was to form a government, for the people in the aggregate. "We, the people of the States of New Hampshire, Massachusetts, etc., * * * do ordain and establish the following Constitution for the government of ourselves and our posterity." From these words, I say, the inference might have been drawn that the object was to forum a government for the people in the aggregate, but this inference is completely rebutted by the change of phraseology. As it stands, the instrument "is ordained and established" as a Constitution for States for the United States. The same as if it read "for the States of this Union."
The change, in this particular, is very important, and the very Preamble, which is so often alluded to, for a directly opposite purpose, conclusively shows that the Government was intended to be, and is a Government of States, and for States, as I said. In the change of phraseology the introduction of the word Union has a wonderful significance of itself. The new Constitution was proposed "in order to form a more perfect Union," that is, it was to make more perfect "the Union" then existing. That, we have seen, was a Union of States under the Articles of Confederation. It was to revise these Articles, to enlarge the powers under them, or, in other words, to perfect that Union, that the Convention was called; and that was the object aimed at in all their labors to the conclusion of their work as set forth in this Preamble. So much for the evidence furnished by the Preamble.
But to put the matter beyond all cavil the last clause of the Constitution settles that question. That clause is in these words:
"The ratification of the Conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same."*
* See Constitution, Appendix C.
The word, between, was put in on special motion, which shows how closely words were watched, weighed, and guarded at the time. This shows, beyond all doubt or cavil, that it was to be acted upon by States as States. and not by the people of all the States in one aggregate mass. That, you will permit, me, most respectfully and good-humoredly, to say, as it seems to me, is one of the most preposterous ideas that ever entered into the head of a sensible man.
Elliot's Debates, vol. i, p. 277.
Why the very last act of the Convention, in giving a finishing touch to the Constitution, and thereby impressing upon it forever their understanding of their own work, that it was a Union of States, is in these words:
"Done in Convention, by the unanimous consent of the States present, the 17th day of September, in the year of our Lord, 1787, and of the Independence of the United States of America the twelfth. In witness whereof we have hereunto subscribed our names."*
* Elliot's Debates, vol. i, p. 317.
The Delegates signing their names by States.
The Constitution was then sent, with a letter, to the States in Congress assembled, requesting that it should be submitted by them to the several State Legislatures, for them to provide for its submission to Conventions in the several States, to be acted on by them, and to go into effect between such States as should ratify it, if so many as nine or more should so ratify it.
Elliot's Debates, vol. i, p. 306.
Congress, immediately upon the receipt of the report of the Convention, passed the following resolution:
"Resolved unanimously, That the said report, with the resolutions and letter accompanying the same, be transmitted to the several Legislatures, in order to be submitted to a Convention of Delegates in each State, by the people thereof, in conformity to the resolves of the Convention made and provided in that case."
Elliot's Debates, vol. i, p. 319.
These are facts about which there can be no dispute or doubt.
What, then, becomes of Mr. Motley's statement that "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! It was 'ordained and established' over the States by the people of the whole land in their aggregate capacity, acting through Conventions of Delegates expressly chosen for the purpose within each State, independently of the State Governments after the project had been framed!"
Was a grave statement of historical facts ever more reckless or more directly in conflict with indisputable public records? By whose authority did the Convention meet that framed the Constitution but that of the several States? Whose work was the Constitution so framed but that of the States themselves through their appointed Deputies or Delegates, as the Constitution declares on its very face? By whose authority were the State Conventions called to act upon it in their Sovereign capacity but the authority of the State Governments, the State Legislatures? How can it be said that the Constitution was established over the States by a power superior to the States, when the paper itself declares it to be a Constitution "for the United States," that is, for the States that were to be united by it, and to be established, not over, but "between the States so ratifying" it? Yes, "between the States so ratifying" it? The States, as States, through Conventions of their people, embodying the Sovereignty of each State severally, were to ratify it, before it could have any binding force or effect upon any one of them or their people.
Yes, I repeat, between the States so ratifying it! That is the language of the Constitution itself, and there it will stand as an everlasting refutation of the assertion of Mr. Motley and all others of like character, by whomsoever made, without further comment by me!
PROF. NORTON. Why were the words "We, the people," introduced in the preamble at all, if your views be correct? Does not this show clearly, that it was expected and intended, that the whole people should act on it through their State Conventions? Was it not, therefore, virtually submitted to them for their approval and adoption? Why was it not simply referred back to the State Legislatures?
MR. STEPHENS. For the clearest reason in the world., It was because ultimate, absolute Sovereignty resided with the people of each State respectively. The additional Sovereign powers, which were proposed to be delegated to the States jointly under the Constitution, such as the taxing power, and the power to regulate trade, with the right to pass laws acting directly upon the citizens of the Sovereign States; etc., could only be delegated by the people in their Sovereign capacity. This delegation could be made only by a Convention of the people for that purpose. These powers, by their then existing Constitutions, were vested in their State Legislatures. The Legislatures of the several States, at that time, had the sole power to tax, to regulate trade, etc. These powers had to be resumed by the people of each State separately, and taken by them from that set of agents and delegated to another set of agents. No power short of the Sovereignty itself, in each State, could do this; or in other words, as ultimate Sovereignty resided in the people of the States respectively, all new delegations of power, as well as all changes of agents in whom the delegated powers were to be intrusted, could only be made by the people themselves of each state in their Sovereign capacity. This is the whole of it in a nutshell.
The Legislatures of the States were not competent to make this delegation of additional powers to the United States, because they were acting under delegated powers themselves. They were possessed of no power, except such as the people of the States, in their Sovereign capacity, had delegated to them, and amongst those delegated powers, with which they were clothed, none had been granted, empowering them to make this new delegation of powers to the General Government. It was for this reason, amongst others, that Mr. Hamilton, in the twenty-second number of the Federalist, showed why the Constitution should be submitted to Conventions in the several States, instead of to the Legislatures. This is why he said its foundation ought to be deeper than "the mere sanction of delegated authority," why the fabric "ought to rest on the solid basis of the consent of the people." All political power, said he, "ought to flow, immediately, from that pure original fountain of all legitimate authority."
Among the advocates in the Convention for submitting the Constitution to the people of the States, or rather to Conventions in the States, representing the people directly upon this question, none was more zealous or conspicuous, than Mr. Mason, of Virginia, one of the strongest State Sovereignty men in the body.
"He considered a reference of the plan, to the authority of the people, as one of the most important and essential of the resolutions. The Legislatures have no power to ratify it. They are the mere creatures of the State Constitutions, and cannot be greater than their Creators. And he knew of no power in any of the Constitutions he knew there was no power in some of them that could be competent to this object. Whither, then, must we resort? To the people, with whom all power remains, etc. It was of great moment, he observed, that this doctrine should be cherished, as the basis of free Government."*
* Madison Papers, vol. v, to Elliot's Debates, p. 352.
Mr. Curtis, in his History of the Constitution, gives reasons somewhat more elaborate, but all based upon the same principle. He says:
"The States, in their corporate capacities, and through the agency of their respective Governments, were parties to a Federal system, which they had stipulated with each other, should be changed only by unanimous consent. The Constitution, which was now in the process of formation, was a system, designed for the acceptance of the people of all the States, if the assent of all could be obtained; but it was also designed for the acceptance of a less number than the whole of the States, in case of a refusal of some of them; and it was at this time highly probable that at least two of them would not adopt it. Rhode Island had never been represented in the Convention; and the whole course of her past history, with reference to enlargements of the powers of the Union, made it quite improbable, that she would ratify such a plan of Government, as was now to be presented to her. The State of New York had, through her Delegates, taken part in the proceedings, until the final decision, which introduced into the Government a system of popular representation; but two of those Delegates, entirely dissatisfied with that decision, had withdrawn from the Convention, and had gone home to prepare the State for the rejection of the scheme. The previous conduct of the State had made it not at all unlikely that their efforts would be successful. Nor were there wanting other indications of the most serious dissatisfaction, on the part of men of great influence in some of the other States. Unanimity had already become hopeless, if not impracticable; and it was necessary, therefore, to look forward to the event of an adoption of the system by a less number than the whole of the States, and to make it practicable for a less number to form the new Union for which it provided. This could only be done by presenting it for ratification to the people of each State, who possessed authority to withdraw the State Government from the Confederation, and to enter into new relations with the people of such other States as might, also, withdraw from the old and accept the new system."*
* Curtis's History of the Constitution, vol. ii, bk 4, ch. 8, pp. 181, 182
The whole of this view rests upon the acknowledged principle, that Sovereignty, under our system, or that Paramount authority, which can rightfully make and unmake Constitutions, and which has the uncontrolled right to resume and re-invest, by delegation, the exercise of Sovereign Powers at will, subject only to the laws of Nations, resided at that time with the several States. It suggests a very pertinent inquiry, and that is, if any number of States, by virtue of this ultimate, absolute Sovereignty, had the undoubted right, as he clearly admits they had, to withdraw at that time from the old Union, which was declared upon its face to be perpetual why could not a like number, or any number, of the same States, by virtue of the same ultimate, absolute Sovereignty, in like manner, in 1861, withdraw from the new Union, wherein no such pledge for perpetuity was given or required?
But I will not anticipate by a digression here. We are now on the point, whether the principles, on which the Confederation was based, that is, a Compact or Union between States, were changed by the adoption of the new Constitution. Whether the present Government of the United States is a National Government proper, that is, whether it is a Government of the whole people consolidated into one Nation, or whether it still retains all the original Federative features of the first articles of Confederation. And, whether ultimate Sovereignty or Paramount authority still resides under the Constitution where it did under the Confederation.
We have seen that Judge Story's first resolution of the Convention has not a single leg to stand upon.* We have, also, seen that all arguments drawn from "We, the people," in the Preamble to the Constitution, are quite as legless and groundless.
* Ante, p. 123-4.
Ante, p. 140-41.
PROF. NORTON. What do you do with Washington's letter, where he says, that the great object with the Convention was to consolidate the Union?
MR. STEPHENS. Do with it! Why I show from that the same principles I show from all the facts of our history. That shows that the object of the Convention had been to perfect the terms of the Union, which was the sole object for which the Convention had been called.
PROF. NORTON. Does he not say, that the object was the Consolidation of the Union? And does not that clearly show that he considered the Sovereignty of all the States merged in the Union under the Constitution?
MR. STEPHENS. By no means. So far from it, it shows most clearly directly the contrary. That letter, you must recollect, was not prepared by Washington, but by the Convention that framed the Constitution. It was prepared and reported with the Constitution. It was taken up and adopted, paragraph by paragraph, the same day, and immediately after the adoption of the seventh Article of the Constitution, which I have just read.* It was contemporaneous action with it, and by the same body of men, and cannot, therefore, be presumed to have any thing in it intended to be inconsistent with that Article of the Constitution. The letter was one from the Convention that had just finished its labors, which they authorized Washington to send to the States, in Congress assembled, for the purpose of presenting them with the result of their work. It is in these words.
* Journal of the Convention. Elliot's Debates, vol. i, p. 305.
Elliot's Debates, vol. i, pp. 305, 306.
"We have now the honor to submit to the consideration of the United States, in Congress assembled, that Constitution which has appeared to us the most advisable.
"The friends of our country have long seen and desired that the power of making war, peace, and treaties; that of levying money and regulating commerce; and the correspondent executive and judicial authorities, shall be fully and effectually vested in the General Government of the Union. But the impropriety of delegating such extensive trust to one body of men is evident. Thence results the necessity of a different organization. It is obviously impracticable, in the Federal Government of these States, to secure all rights of Independent Sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty to preserve the rest. The magnitude of the sacrifice must depend as well on situation and circumstances as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved. And, on the present occasion, this difficulty was increased by a difference, among the several States, as to their situation, extent, habits, and particular interests.
"In all our deliberations on this subject, we kept steadily in our view that which appeared to us the greatest interest of every true American the consolidation of the Union, in which is involved our prosperity, felicity, safety perhaps our National existence. This important consideration, seriously and deeply impressed on our minds, led each State in the Convention to be less rigid in points of inferior magnitude, than might have been otherwise expected. And thus the Constitution which we now present is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable.
"That it will meet the full and entire approbation of every State is not, perhaps, to be expected. But each will doubtless consider that, had her interest alone been consulted, the consequences might have been particularly disagreeable and injurious to others. That it is liable to as few exceptions as could reasonably have been expected, we hope and believe; that it may promote the lasting welfare of that country so dear to us all, and secure her freedom and happiness, is our most ardent wish."
Washington signed this letter as President of the Convention, and addressed it to the United States, in Congress assembled. Who were these States thus addressed? Thirteen Sovereignties, as we have seen, between whom there was a well-known Union existing, founded upon Articles of Confederation. These States thus addressed were then in Congress assembled, under the terms of that Union. The body of men addressing them was a Convention of Delegates from each of these States, which had met in pursuance of a resolution of that Congress, as we have seen, for the sole and express purpose of revising the Articles of the Union which then existed between them as separate and distinct Sovereign Powers. This letter simply informed the, States, thus assembled what they had done in the premises, and that they thought that the work of their hands, so sent them in accordance with their instructions, was the best that could be done with the great business intrusted to their charge. They say, and say truly, that the great object with them in their deliberations was the consolidation of the Union. This, of course, was not its abrogation and dissolution, or the formation of a new and different one. The object was to strengthen the Union of States. That was the only Union existing, and the only Union to which they could have referred. The object was to strengthen or consolidate the bonds of that Union, and not to weaken them, much less to sever and utterly destroy them, as would be the import of the word according to your construction. The object was to render the Union of States more perfect or better calculated to accomplish the ends for which it was at first formed. Is not this perfectly clear and true beyond all question? Could any thing be more preposterous or absurd than to suppose that such a body of men, so called together, would, in giving an account of their labors to the body calling them, have stated that the great object with them had been to do the very reverse of what they had been called to do? Can any one believe that Washington could ever have been induced to sign a letter with such design and intention? If the Federal character of the Government had been intended to be abandoned in the plan they proposed, would not these very words have been necessarily left out? Do not the words of themselves, in their connection with their contemporaneous action, under all the circumstances and surroundings, most conclusively rebut the inference that you and others draw from them, and establish beyond the shadow of doubt that the object was not to merge the Sovereignty of all the States into one, and to abandon the Union of Sovereign States by the establishment of a great National Government?
Look, also, to other words in the same letter. "It is obviously impracticable in the Federal Government of these States to secure all rights of Independent Sovereignty to each," etc. Many Sovereign powers had been delegated under the Articles of Confederation. More were now proposed to be delegated in the same way. This required "a different organization." That is, a division of the departments into which all the powers were to be intrusted. A change of machinery in operating the system, and not a change of the basis of the system. The difficulty attending these changes "was increased by a difference among the States." "This important consideration, etc., led each State in the Convention," etc. Does not the whole of this paper most clearly show that the Convention meant by it simply to say that their great object was to strengthen and make more perfect the bonds of the Federal Union then existing? and that they thought that object would be accomplished by the States adopting the plan proposed. "That it will meet the full and entire approbation of every State," they say, is not perhaps to be expected."
In what respect, in tone or sentiment, touching the character of the Union to be consolidated, does this letter differ from a similar one sent to the States by Congress with the first Articles of Union, in 1777? In that, amongst other things, Congress said, "that to form a permanent Union, accommodated to the opinions and wishes of the Delegates of so malty States, differing in habits, produce, commerce, and internal police, was found to be a, work which nothing but time and reflection, conspiring with a disposition to conciliate, could mature and accomplish. Hardly is it to be expected that any plan, in the variety of provisions essential to our Union, should exactly correspond with the maxims and political views of every particular State. Let it be remarked, that after the most careful inquiry and the fullest information, this is proposed as the best which could be adapted to the circumstances of all, and as that alone which affords any tolerable prospect of general ratification. Permit us, then, earnestly to recommend these Articles to the immediate and dispassionate attention of the Legislatures of the respective States. Let them be candidly reviewed under a sense of the difficulty of combining, in one general system, the various sentiments and interests of a continent, divided into so many Sovereign and Independent communities, under a conviction of the absolute necessity of uniting all our councils, and all our strength, to maintain and defend our common liberties;"* Does the letter of the Convention look any more to the abrogation of State Sovereignties than the letter of Congress to the States in 1777?
* Elliot's Debates, vol. i, p. 69.
Here is also a letter from Roger Sherman and Oliver Ellsworth, two very distinguished Delegates to the Convention from Connecticut, written on the 26th of September, 1787, and addressed to the Governor of their State, making a report to him of the action of the Convention, and the result of their labors. This shows clearly that their understanding of the letter of the Convention to Congress was in accordance with the views now presented.
"We have the honor to transmit to your Excellency," they say, "a printed copy of the Constitution formed by the Federal Convention, to be laid before the Legislature of the State.
"The general principles which governed the Convention, in their deliberations on the subject, are stated in their address to Congress.
"We think it may be of use to make some further observations on particular parts of the Constitution.
"The Congress is differently organized; yet the whole number of members, and this State's proportion of suffrage, remain the same as before.
"The equal representation of the States in the Senate, and the voice of that branch in the appointment to offices, will secure the rights of the lesser as well as of the greater States.
"Some additional powers are vested in Congress, which was a principal object that the States had in view in appointing the Convention. Those powers extend only to matters respecting the common interests of the Union, and are specially defined, so that the particular States retain their Sovereignty in all other matters.
"The objects for which Congress may apply moneys are the same mentioned in the eighth article of the Confederation, viz.: for the common defence and general welfare, and for payment of the debts incurred for those purposes. It is probable that the principal branch of revenue will be duties on imports. What may be necessary to be raised by direct taxation is to be apportioned on the several States, according to the number of their inhabitants; and although Congress may raise the money by their own authority, if necessary, yet that authority need not be exercised, if each State will furnish its quota.
"The restraint on the Legislatures of the several States respecting emitting bills of credit, making any thing but money a tender in payment of debts, or impairing the obligation of contracts by ex post facto laws, was thought necessary as a security to commerce, in which the interest of foreigners, as well as of the citizens of different States, may be affected.
"The Convention endeavored to provide for the energy of Government on the one hand, and suitable checks on the other hand, to secure the rights of the particular States, and the liberties and properties of the citizens. We wish it may meet the approbation of the several States, and be a means of securing their rights and lengthening out their tranquillity. With great respect, we are, Sir, your Excellency's obedient, humble servants."*
* Elliot's Debates, vol. i, p. 491.
Could any thing be more pertinent or conclusive, upon these points, than this letter?
But we have numerous contemporaneous letters from Washington to divers persons, which throw a flood of light upon the subject, and show clearly his understanding of that letter to Congress to have been in accordance with the views I have presented. These letters also show what little weight is to be given to Mr. Motley's assertion that the States never acceded to the Constitution as a Compact between them. On this point we have in these letters authority higher than that of Mr. Motley: What the States did do, we shall see. Whether their action can be properly termed accession or not, has been a matter on which men have differed. Mr. Motley is on one side, while General Washington, Mr. Jefferson, Governor Randolph, Judge Marshall, Mr. Madison, and a host of others, are on the other side.
In a letter of General Washington to Bushrod Washington, on the 10th of November, 1787, while the Constitution was before the States for consideration, he says:*
* Washington's Writings, vol. ix, page 278.
"Let the opponents of the proposed Constitution in this State be asked and it is a question they certainly ought to have asked themselves what line of conduct they would advise it to adopt; if nine other States, of which I think there is little doubt, should accede to the Constitution?"
In the same volume, on page 304, is a letter from General Washington to Mr. Madison, dated the 10th of January, 1788. In this he says:
"But of all the arguments that may be used at the Convention which is to be held, the most prevailing one I expect will be that nine States at least will have acceded to it."
Here is a letter from Washington to Charles C. Pinckney, dated the 28th of June, 1788, in which he says:
Washington's Writings, vol. ix, pp. 389. 390.
"No sooner had the citizens of Alexandria, who are Federal to a man, received the intelligence by the mail last night, than they determined to devote this day to festivity. But their exhilaration was greatly increased, and a much keener zest given to their enjoyment, by the arrival of an Express, two hours before day, with the news that the Convention of New Hampshire had, on the 21st instant, acceded to the new Confederacy by a majority of eleven voices that is to say, fifty-seven to forty-six. * * * From the local situation, as well as the other circumstances of North Carolina, I should be truly astonished if that State should withdraw itself from the Union. On the contrary, I flatter myself with a confident expectation that more salutary counsels will certainly prevail. At present there is more doubt how the question will be immediately disposed of in New York; for it seems to be understood that there is a majority in the Convention opposed to the adoption of the new Federal system."
In General Washington's speech to Congress, on the 8th of January, 1790, he spoke of the adoption of the Constitution by North Carolina, as "the recent accession of that State to the Constitution." The Senate, in their reply to his Speech, use the same word.*
* Annals of Congress, vol. i, pp. 932-935.
But why continue these extracts? Are they not quite sufficient to show that General Washington he who stood at the head of that band of patriots who framed the Constitution for a more perfect Union between the States entertained different ideas of the nature of the action of the States upon it from those of Mr. Motley? He says the States acceded to it. Mr. Motley says they did not. There the matter may rest, upon that point. But these letters also throw quite a flood of light, as I said, upon the true meaning of the words, "a Consolidation of the Union," which we have just been speaking of. They show that Washington clearly understood the new system to be a Federal system, as the old one was. That there was no change of the locus of ultimate absolute Sovereignty under it. That the Union, which was perfected and consolidated, was to be still a Union of States, each Sovereign as before, and not a Union of the entire people of the whole country, as Mr. Motley contends. Washington emphatically styles it, "the new Confederacy" "the new Federal System." Mr. Motley says, that the present Government is no Confederacy, that "we had already enough of a Confederacy." Here again, he is directly at issue with Washington. Washington speaks of the new system, as of the old, and styles it "the new Confederacy." Here, again, I will leave the issue between Mr. Motley and General Washington.
PROF. NORTON. Mr. Stephens, without wishing to interrupt you, I should like to ask you a question just here.
MR. STEPHENS. It will not interrupt me at all. I am ready to give my views at any time upon any point; and there is no better time than when the point is suggested to the mind in the course of investigation. The object of our inquiry is the nature of the Government of the United States whether it be the Government of one people as a Nation, or whether it be Federal that is, a Government of States. What is it you would ask?
PROF. NORTON. Well, then, I should like to know if it was not generally thought at the time that the consolidation of the Union, mentioned in the letter of the Convention to Congress, would merge the Sovereignty of all the States into one? Was it not because of this general belief that Yates and Lansing, of New York, and Luther Martin, of Maryland, quit the Convention? and was not this the reason that Governor Randolph and Mr. Mason, from Virginia, refused to vote for or sign the Constitution, and that Patrick Henry exerted all the powers of his eloquence against its adoption by the State of Virginia? I have always so understood it. Where I got the impression I do not know. But was not this the case?
MR. STEPHENS. There was, as you say, strong opposition to the Constitution upon the grounds you state. Mr. Lansing and Mr. Yates, from New York, did quit the Convention because of their dissatisfaction with its proceedings. So did Luther Martin. Mr. Mason, of Virginia, and Governor Randolph, of Virginia, both refused to vote for it, and both refused to sign it; as also did Mr. Gerry, from Massachusetts. But they all acted from different motives, and assigned different reasons for their conduct.
Lansing and Yates quit the Convention because they were for an equality of votes on the part of the States in both Houses of Congress. Yates had agreed to the adjustment proposed by the first grand Committee of Conference, as we have seen. That report met with so little favor, was so violently denounced by Mr. Madison and others, that he immediately left, supposing it would not be adopted. His colleague left with him.*
* Elliot's Debates, vol. i, p. 479.
Other equally strong State Sovereignty and State Rights men remained; and, by the final action of the Convention, an equality of votes in the Senate was secured to the States, as we have seen. They were perfectly satisfied that the Federal system was still retained by this adjustment.
Luther Martin was unyielding upon the point of equality of suffrage on the part of the States in both Houses of Congress. Indeed, he was unalterably opposed to many of the new and additional powers delegated by the Constitution. He was opposed to the Executive and Judiciary Departments, as constituted, and to the prohibitions on the States against emitting Bills of Credit or passing laws impairing the obligations of contracts. He thought the Government, notwithstanding the opinion of its friends to the contrary, would end in despotism, and so warned his countrymen, in eloquence of the highest order.
Elliot's Debates, vol. i, pp. 344, 389.
Mr. Mason and Mr. Gerry opposed several features an the new plan and thought it departed too far from a strictly Federal alliance.*
* Elliot's Debates, vol. i, p. 492.
Governor Randolph, on the other hand, opposed the new plan and refused to sign it, because, in his judgment, it did not depart from the Federal system.
Mr. Curtis says, that Governor Randolph thought the Constitution was "a system containing far greater restraints upon the powers of the States than he believed expedient or safe," etc. This is certainly a mistake. Just the contrary is the fact. Governor Randolph, in assigning his reasons for not voting for the Constitution and withholding his signature from it, in a letter to the Speaker of the House of Representatives of Virginia, says, amongst other things:
Curtis's History of the Constitution, vol. i, p. 481.
"It follows, too, that the General Government ought to be the supreme arbiter for adjusting every contention among the States. In all their connections, therefore, with each other, and particularly in commerce, which will probably create the greatest discord, it ought to hold the reins."
Governor Randolph was opposed to many features of the Constitution, such as the Executive department. The whole was summed up in this.
"But, now, sir, permit me to declare, that in my humble judgment, the powers by which alone the blessings of a General Government can be accomplished, cannot be interwoven in the Confederation, without a change in its very essence, or, in other words, that the Confederation must be thrown aside."
Elliot's Debates, vol. i, p. 48(6.
This shows that Governor Randolph did not consider that there was a general merger of the Sovereignty of all the States in the Union, which the Convention had consolidated, as we have seen. It clearly shows that, in his opinion, the Federative system was still retained in the new Constitution, as it existed under the old. He had put forth the utmost of his strength in the Convention, for what be called a National Government, or one based upon the abandonment of the Federal system. His views were embodied in his plan of Government, and in his Resolution, which proposed to give the power to the General Government to judge as between it and the States of infractions of the Constitution, which, we have seen, was negatived, and Martin's Resolution agreed to instead. The essence of Confederation was abandoned in his plan; but his plan, in this particular, was not adopted. The new Constitution continued upon the same Federative basis, and simply sought to make the Union upon that basis more perfect. At this Governor Randolph was disappointed and chagrined hence his lamentations and opposition. He was elected to the Convention, in Virginia, to which the Constitution was submitted, pledged to go against its ratification, mainly for this very reason; but when he found that there was no hope, whatever, of getting Virginia and the other States to adopt such a National Government as he wanted, or to depart in the slightest degree from the essence of the Federative system, he then ceased his opposition to the Constitution, as it was, and voted for its ratification.
But still there was a very general and strong opposition, throughout all the States, upon the grounds you state. It was urged by many, "That the Union, upon the Federal basis, was proposed to be abandoned, and a new Union to be formed lay a consolidation of the separate Sovereignties of the States." In the glowing language of the day it was asserted "That a Government, so organized, and absorbing all the powers of the States, would produce from their ruins one consolidated Government, founded upon the destruction of the several Governments of the States." "The powers of Congress. under the Constitution, are complete and unlimited over the purse and the sword, and are perfectly independent of and supreme over the State Governments, whose intervention, on these great points, is utterly destroyed. By virtue of the power of taxation Congress may command the whole or any part of the properties of the people. They may impose what imposts upon Commerce, they may impose what land taxes, and taxes, excises, and duties on all instruments, etc., to any extent they please. When the spirit of the people shall be gradually broken, when the National Government shall be firmly established, and when a numerous standing army shall render opposition vain, the Congress may complete the system of Despotism in renouncing the dependence on the people by continuing themselves," and successors in power forever.*
* Story on the Constitution, vol. i, pp. 272, 273.
Patrick Henry did head this opposition with all his might in the Convention of Virginia. His grounds were various. He saw but little in any of its features that he liked. The Executive Department, in his judgment, "squinted towards Monarchy." His chief objection to it, however, was the want of a Bill of Rights, and because it was not expressly stated on the face of the Constitution that the Sovereignty of the States was retained or reserved, as it had been in the Articles of Confederation. It was in vain that he was told, by many as strongly in favor of State Sovereignty as he could be, that the whole system, upon its face, was one of delegated powers, and that none could be claimed, or exercised, except those delegated. That, as a matter of course, all which were not delegated were retained and reserved, that Sovereignty, not being expressly parted with, still remained with the States. He, however, thought that what had been aimed at, and so assiduously attempted by the Nationals in the Convention, would be ultimately attained by them by implication and construction, if the Constitution should be adopted and put in operation without numerous amendments which lie proposed. With these amendments he declared his willingness to agree to the Constitution, notwithstanding his strong objections to various other features in the new organization. The principles of most of these amendments, proposed by him, were afterwards adopted. He was, then, far advanced in years, and though his opposition to the Constitution, after the adoption of the amendments, "abated in a measure, yet he remained fearful, to the end of his life, that the final result would be the destruction of the rights of the Sovereignty of the States."*
* Patrick Henry. New American Encyclopædia.
With unsurpassed eloquence, Patrick Henry possessed one of those wonderful minds which, by a sort of instinct or supernatural faculty, scents the approaches of power, even in the distance. This instinct, or far-seeing superhuman endowment, prompted him to sound the alarm when the Constitution was at first presented to him.
This is all true, but it is also true that his opposition, and that of all others at the time, sprung rather from apprehensions of evils that would result from constructions that would be put upon the Constitution, than from any thing that appeared upon its face, or from powers under it claimed by its framers or advocates. Power, it was said by the opponents of the Constitution, was ever insidious in its approaches, and the lines between the Sovereign powers delegated in the Constitution to the States jointly, to be exercised by them jointly, and those retained to the several States, were not drawn with sufficient clearness and distinctness. The whole opposition was argumentative. The reply, on all hands, even by those who had contended in the Convention for an abandonment of the Federal system, was that this system had not been abandoned in the plan proposed that enlarged powers had been delegated and new machinery for the exercise of those powers had been introduced, but no change in the nature or character of the Government. This, we have just seen, was Washington's position. His name was a host in itself. It was also the position of Hamilton, of King, of Wilson, of Madison, of Morris, of Randolph, and all the Nationals of the Convention, as we shall see. What was argued would be the legitimate tendency and ultimate results of a Government so organized was strenuously denied by the friends and advocates of the Constitution. This is abundantly clear from the history of the times. Not a supporter or defender of the Constitution advocated it upon the grounds that the Sovereignty of the States was parted with under it. Sc thoroughly Federal was the Constitution admitted to be by its advocates everywhere that they universally took to themselves the name of Federalists. Washington, we have just seen, said that the people of Alexandria "were Federal to a man;" that is they were all for the Constitution, believing and understanding it to be Federal in its nature and character. That series of Articles, eighty-five in number, which have become historic, written by Hamilton, Madison, and Jay (all national before), urging upon the people reasons for adopting the Constitution, were stylled "the Federalist." The Constitution was universally called the "Federal Constitution." The seat of Government was to be known as "The Federal City." So strongly and deeply impressed was this idea and understanding upon the minds of the people that it assumed solid embodiment in outward forms, representations, and symbols. In Boston, after the ratification of the Constitution by Massachusetts, "there issued from the gates of Faneuil Hall an imposing procession of five thousand citizens, embracing all the trades of the town and its neighborhood, each with its appropriate decorations, emblems and mottoes. In the centre of this long pageant, to mark the relation of every thing around it to maritime commerce, and the relation of all to the new Government, was borne the SHIP 'FEDERAL CONSTITUTION,' with full colors flying and attended by the merchants, captains and seamen of the Port." This was the first of a series of similar pageants which took place in the other principal cities of the Union in favor of the ratification of the Constitution."*
* Curtis's History of the Constitution, vol. ii, p. 540.
In Baltimore they had a ball, an illumination, and a grand procession of trades. In this procession was borne a miniature ship, "The Federalist."
Curtis's History of the Constitution, vol. ii, p. 543.
"The ratification of Virginia took place on the 25th of June. The news of this event was received in Philadelphia on the 2d of July. The press of the city was at once filled with rejoicings over the action of Virginia. She was the tenth pillar in the Temple of Liberty. She was Virginia the oldest and foremost of the States land of statesmen, whose Revolutionary services were household words in all America birthplace and home of Washington! We need not wonder, when she had come so tardily, so cautiously into the support of the Constitution, that men should have hailed her accession with enthusiasm! The people of Philadelphia had been some time preparing a public demonstration in honor of the adoption of the Constitution by nine States. Now that Virginia was added to the number, they determined that all possible magnificence and splendor should be given to this celebration, and they chose for it the anniversary of the National Independence.
"A taste for allegory appears to have been quite prevalent among the people of the United States at this period. Accordingly, the Philadelphia Procession of July 4, 1788, was filled with elaborate and emblematical representations. It was a long pageant of banners of trades and devices. A decorated car bore the Constitution, framed as a banner and hung upon a staff. Then another decorated car carried the American Flag. Then followed the Judges, in their robes, and all the public bodies, preceding a grand Federal Edifice, which was carried by a carriage drawn by ten horses. On the floor of this edifice were in chairs ten gentlemen representing the citizens of the United States at large, to whom the Federal Constitution had been committed before its ratification. When it arrived at 'Union Green,' they gave up their seats to ten others, representing ten States, which had ratified the instrument."*
* Curtis's His. Con., vol. ii, p. 543.
What force was there, in this stage representation, to the popular mind of the process through which the Constitution passed in its ratification? The first ten gentlemen, representing the citizens of all the ten States at large, each acting for themselves, in their several Sovereign capacities, after having given it their several sanction, then turning it over to ten others, representing the ten States for whom it had been so ordained and established, for them to hold, keep, preserve, and maintain, not over them, but between them, and over the Government instituted by it!
These demonstrations, devices, mottoes, and symbols, clearly show how the great mass of the people, in all the States, understood the new Constitution. It was nothing but a more perfect bond of Union between States. Federal was the watchword of the day in Boston, New York. Philadelphia, Baltimore, Richmond, and Charleston. It was the grand symbolized idea throughout the whole length and breadth of the land. There can be no doubt that the people thought they were adopting a Federal Constitution forming a Federal Union.
Now, then, what is the meaning of this word Federal, which entered so deeply into the thoughts, the hearts, and understandings of the people at that day. Here words are things! Dr. Johnson, the highest authority of that day, in his Dictionary, thus defines the word: FEDERAL (Fdus, Lat.) relating to a League or Contract. FEDERATE, he defines (Federatus, Lat.) leagued, joined in a Confederacy.
The great American lexicographer, Noah Webster, says of this word "Federal," that it is derived from the Latin word "Fdus," which means a League. A League he defines to be "an Alliance or Confederacy between Princes or States for their mutual aid or defence." And, in defining the meaning of the word Federal, he uses this language: "Consisting in a Compact between States or Nations; founded on alliance by contract or mutual agreement; as, a Federal Government, such as that of the United States."
Dr. Worcester, in his new Dictionary, another standard work with philologers of the first rank, says, of this word "Federal," that it is from the Latin "Fdus," "a Compact." He defines it thus: "1. Relating to a League or Compact;" etc. "2. Relating to, or joined in, a Confederacy, as Communities or States; Confederate; particularly, belonging to the Union, or the United States."
Federal, from its very origin and derivation, therefore, has no meaning, and can have none, dissociated from Compact or Agreement of some sort, and it is seldom ever used to qualify any Compacts or Agreements except those between States or Nations. So that Federal and Confederate mean substantially the same thing. When applied to States they both imply and import a Compact between States. Washington, in one of his letters, which I have just read, spoke of the new Government as "a Confederacy." In another, to Sir Edward Newenharm, dated the 20th July, 1788, he speaks of the new Government then ratified by enough States to carry it into effect as a "Confederated Government."* In his response to the reply of the Senate to his first speech to Congress after the new Government was organized, in 1789, he expressed his happiness in the conviction that "the Senate would at all times co-operate in every measure which may tend to promote the welfare of this Confederated Republic." These are the terms by which he characterized "the Union," after the present Constitution was formed and after it was in operation. There is no difference between the words Federal and Confederated as thus used and applied. We see that Washington used them both, at different times, to signify the same thing, that is, the Union of the American States under the Constitution.
* Washington's Writings, vol. ix, p. 398.
Annals of Congress, vol. i, p. 38.
It being universally admitted, then, by the advocates of the Constitution at the time of its adoption, that it was Federal in its character, and that the Government under it would be a Confederated or Federal Republic, which means the same thing, let us see what is the nature and very essence of all such Governments. Dropping Dictionaries, let us go to writers upon the Laws of Nations. Here is Montesquieu. In Book ix, chap. 1, he speaks first of Republics generally. These may exist either under Democratic or Aristocratic Constitutions.
"If a Republic," a single Republic, he means, "is small, it is destroyed by a foreign force; if it be large, it is ruined by an internal imperfection. * * * * *
"It is, therefore, very probable, that mankind would have been at length obliged to live constantly under the Government of a single person, had they not contrived a kind of Constitution that has all the internal advantages of a Republican, together with the external force of a Monarchical Government. I mean a Confederate Republic.
"This form of Government is a Convention, by which several small States agree to become members of a larger one which they intend to form. It is a kind of assemblage of societies, that constitute a new one, capable of increasing by means of new associations, till they arrive to such a degree of power, as to be able to provide for the security of the united body. * * * *
"The State" (that is the State formed by the Confederation) "may be destroyed on one side, and not on the other; the Confederacy may be dissolved, and the Confederates preserve their Sovereignty.
"As this Government is composed of petty Republics, it enjoys the internal happiness of each; and with respect to its external situation, it is possessed, by means of the association, of all the advantages of large monarchies."
This, by the highest authority, is the form and nature of all Federal or Confederated Republics. The Government of the United States, in the judgment of Washington, belongs to that class. All the States of the Union were small Republics within themselves. By entering the Union for foreign and inter State purposes, they did not, therefore, according to Montesquieu, forfeit or part with their separate sovereignty. On the same subject, Vattel, another writer, universally admitted to be authority of high order, says:
"Several Sovereign and Independent States may unite themselves together by a perpetual Confederacy, without ceasing to be, each individually, a perfect State. They will together constitute a Federal Republic; their joint deliberations will not impair the Sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it in virtue of voluntary engagements."* That, I maintain, was exactly what the States of our Union did, by the adoption of the Constitution.
* Vattel's Laws of Nations, p. 3.
I am, however, anticipating a little. We have not yet examined the new and additional powers delegated in the Constitution to see if they, by their own force and proper effect, of necessity changed the character of the Union before existing, nor have we yet examined into the acts of the States upon that measure itself. I have been drawn into what I have thus said. rather in advance, in answer to your question touching the general opinion at the time, that the new Government was to be a consolidation of the Sovereignty of the States. This, I think, is quite enough to satisfy you that whatever apprehensions were indulged in by many as to results from abuse of powers, yet it was universally admitted by the advocates of the Constitution that a Federal Republic was to be established by it, and not a National Consolidation.
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