The American Republic
by
by O. A. Brownson
Part 3 out of 5
only accidentally associated with the patrician party, which
distrusted him--in vain Cicero declaims, Cato scolds, or parades
his impractical virtues, Brutus and Cassius seize the assassin's
dagger, and strike to the earth "the foremost man of all the
world;" the plebeian cause moves on with resistless force,
triumphs anew at Philippi, and young Octavius avenges the murder
of his uncle, and proves to the world that the assassination of a
ruler is a blunder as well as a crime. In vain does Mark Antony
desert the movement, rally Egypt and the barbaric East, and seek
to transfer the seat of empire from the Tiber to the banks of the
Nile or the Orontes; plebeian and imperial Rome wins a final
victory at Actium, and definitively secures the empire of the
civilized world to the West.
Thus far the developments were normal, and advanced civilization.
But Rome still retained the barbaric element of slavery in her
bosom, and had conquered more barbaric nations than she had
assimilated. These nations she at first governed as tributary
states, with their own constitutions and national chiefs;
afterwards as Roman provinces, by her own proconsuls and prefects.
When the emperors threw open the gates of the city to the
provincials, and conceded them the rights and privileges of Roman
citizens, they introduced not only a foreign element into the
state, destitute of Roman patriotism, but the barbaric and
despotic elements retained by the conquered nations as yet only
partially assimilated. These elements became germs of
anti-republican developments, rather of corruptions, and prepared
the downfall of the empire. Doubtless these corruptions might
have been arrested, and would have been, if Roman patriotism had
survived the changes effected in the Roman population by the
concession of Roman citizenship to provincials; but it did not,
and they were favored as time went on by the emperors themselves,
and more especially by Dioclesian, a real barbarian, who hated
Rome, and by Constantine, surnamed the Great, a real despot, who
converted the empire from a republican to a despotic empire.
Rome fell from the force of barbarism developed from within, far
more than from the force of the barbarians hovering on her
frontiers and invading her provinces.
The law of all possible developments is in the providential or
congenital constitution; but these possible developments are many
and various, and the reason and free-will of the nation as well
as of individuals are operative in determining which of them
shall be adopted. The nation, under the direction of wise and
able statesmen who understood their age and country, who knew how
to discern between normal developments and barbaric corruptions,
placed at the head of affairs in season, might have saved Rome
from her fate, eliminated the barbaric and assimilated the
foreign elements, and preserved Rome as a Christian and
republican empire to this day, and saved the civilized world from
the ten centuries of barbarism which followed her conquest by the
barbarians of the North. But it rarely happens that the real
statesmen of a nation are placed at the head of affairs.
Rome did not fall in consequence of the strength of her external
enemies, nor through the corruption of private morals and manners,
which was never greater than under the first Triumvirate. She
fell from the want of true statesmanship in her public men, and
patriotism in her people. Private virtues and private vices are
of the last consequence to individuals, both here and hereafter;
but private virtues never saved, private vices never ruined a
nation. Edward the Confessor was a saint, and yet be prepared
the way for the Norman conquest of England; and France owes
infinitely less to St. Louis than to Louis XI., Richelieu, and
Napoleon, who, though no saints, were statesmen. What is
specially needed in statesmen is public spirit, intelligence,
foresight, broad views, manly feelings, wisdom, energy,
resolution; and when statesmen with these qualities are placed at
the head of affairs, the state, if not already lost, can, however
far gone it may be, be recovered, restored, reinvigorated,
advanced, and private vice and corruption disappear in the
splendor of public virtue. Providence is always present in the
affairs of nations, but not to work miracles to counteract the
natural effects of the ignorance, ineptness, short-sightedness,
narrow views, public stupidity, and imbecility of rulers, because
they are irreproachable and saintly in their private characters
and relations, as was Henry VI. of England, or, in some respects,
Louis XVI. of France. Providence is God intervening through the
laws he by his creative act gives to creatures, not their
suspension or abrogation. It was the corruption of the
statesmen, in substituting the barbaric element for the proper
Roman, to which no one contributed more than Constantine, the
first Christian emperor, that was the real cause of the downfall
of Rome, and the centuries of barbarism that followed, relieved
only by the superhuman zeal and charity of the church to save
souls and restore civilization.
But in the constitution of the government, as distinguished from
the state, the nation is freer and more truly sovereign. The
constitution of the state is that which gives to the people of a
given territory political existence, unity, and individuality,
and renders it capable of political action. It creates political
or national solidarity, in imitation of the solidarity of the
race, in which it has its root. It is the providential charter
of national existence, and that which gives to each nation its
peculiar character, and distinguishes it from every other nation.
The constitution of government is the constitution by the
sovereign authority of the nation of an agency or ministry for
the management of its affairs, and the letter of instructions
according to which the agent or minister is to act and conduct
the matters intrusted to him. The distinction which the English
make between the sovereign and the ministry is analogous to that
between the state and the government, only they understand by the
sovereign the king or queen, and by the ministry the executive,
excluding, or not decidedly including, the legislature and the
judiciary. The sovereign is the people as the state or body
politic, and as the king holds from God only through the people,
he is not properly sovereign, and is to be ranked with the
ministry or government. Yet when the state delegates the full or
chief governing power to the king, and makes him its sole or
principal representative, he may, with sufficient accuracy for
ordinary purposes, be called sovereign. Then, understanding by
the ministry or government the legislative and judicial, as well
as the executive functions, whether united in one or separated
into distinct and mutually independent departments, the English
distinction will express accurately enough, except for strictly
scientific purposes, the distinction between the state and the
government.
Still, it is only in despotic states, which are not founded on
right, but force, that the king can say, L'etat, c'est moi, I am
the state; and Shakespeare's usage of calling the king of France
simply France, and the king of England simply England, smacks of
feudalism, under which monarchy is an estate, property, not a
public trust. It corresponds to the Scottish usage of calling
the proprietor by the name of his estate. It is never to be
forgotten that in republican states the king has only a delegated
sovereignty, that the people, as well as God, are above him. He
holds his power, as the Emperor of the French professes to hold
his, by the grace of God and the national will--the only title by
which a king or emperor can legitimately hold power.
The king or emperor not being the state, and the government,
whatever its form or constitution, being a creature of the state,
he can be dethroned, and the whole government even virtually
overthrown, without dissolving the state or the political society.
Such an event may cause much evil, create much social confusion,
and do grave injury to the nation, but the political society may
survive it; the sovereign remains in the plenitude of his rights,
as competent to restore government as be was originally to
institute it. When, in 1848, Louis Philippe was dethroned by the
Parisian mob, and fled the kingdom, there was in France no
legitimate government, for all commissions ran in the king's
name; but the organic or territorial people of France, the body
politic, remained, and in it remained the sovereign power to
organize and appoint a new government. When, on the 2d of
December, 1851, the president, by a coup d'etat, suppressed the
legislative assembly and the constitutional government, there was
no legitimate government standing, and the power assumed by the
president was unquestionably a usurpation; but the nation was
competent to condone his usurpation and legalize his power, and
by a plebiscitum actually did so. The wisdom or justice of the
coup d'etat is another question, about which men may differ; but
when the French nation, by its subsequent act, had condoned it,
and formally conferred dictatorial powers on the prince-president,
the principal had approved the act of his agent, and given him
discretionary powers, and nothing more was to be said. The
imperial constitution and the election of the president to be
emperor, that followed on December 2d, 1852, were strictly legal,
and, whatever men may think of Napoleon III., it must be conceded
that there is no legal flaw in his title, and that he holds his
power by a title as high and as perfect as there is for any
prince or ruler.
But the plebiscitum cannot be legally appealed to or be valid
when and where there is a legal government existing and in the
full exercise of its constitutional functions, as was decided by
the Supreme Court of the United States in a case growing out of
what is known as the Dorr rebellion in Rhode Island. A suffrage
committee, having no political authority, drew up and presented a
new constitution of government to the people, plead a plebiscitum
in its favor, and claimed the officers elected under it as the
legally elected officers of the state. The court refused to
recognize the plebiscitum, and decided that it knew Rhode Island
only as represented through the government, which had never
ceased to exist. New States in Territories have been organized
on the strength of a plebiscitum when the legal Territorial
government was in force, and were admitted as States into the
Union, which, though irregular and dangerous, could be done
without revolution, because Congress, that admitted them, is the
power to grant the permission to organize as States and apply for
admission. Congress is competent to condone an offence against
its own rights. The real danger of the practice is, that it
tends to create a conviction that sovereignty inheres in the
people individually, or as population, not as the body politic or
organic people attached to a sovereign domain; and the people who
organize under a plebiscitum are not, till organized and admitted
into the Union, an organic or a political people at all. When
Louis Napoleon made his appeal to a vote of the French people, he
made an appeal to a people existing as a sovereign people, and a
sovereign people without a legal government. In his case the
plebiscitum was proper and sufficient, even if it be conceded
that it was through his own fault that France at the moment was
found without a legal government. When a thing is done, though
wrongly done, you cannot act as if it were not done, but must
accept it as a fact and act accordingly.
The plebiscitum, which is simply an appeal to the people outside
of government, is not valid when the government has not lapsed,
either by its usurpations or by its dissolution, nor is it valid
either in the case of a province, or of a population that has no
organic existence as an independent sovereign state. The
plebiscitum in France was valid, but in the Grand Duchy of
Tuscany, the Duchies of Modena, Parma, and Lucca, and in the
Kingdom of the Two Sicilies it was not valid, for their legal
governments had not lapsed; nor was it valid in the Aemilian
provinces of the Papal States, because they were not a nation or
a sovereign people, but only a portion of such nation or people.
In the case of the states and provinces--except Lombardy, ceded
to France by Austria, and sold to the Sardinian king--annexed to
Piedmont to form the new kingdom of Italy, the plebiscitum was
invalid, because implying the right of the people to rebel
against the legal authority, and to break the unity and
individuality of the state of which they form an integral part.
The nation is a whole, and no part has the right to secede or
separate, and set up a government for itself, or annex itself to
another state, without the consent of the whole. The solidarity
of the nation is both a fact and a law. The secessionists from
the United States defended their action only on the ground that
the States of the American Union are severally independent
sovereign states, and they only obeyed the authority of their
respective states.
The plebiscitum, or irregular appeal to what is called universal
suffrage, since adopted by Louis Napoleon in France after the
coup d'etat, is becoming not a little menacing to the stability
of governments and the rights and integrity of states, and is not
less dangerous to the peace and order of society than "the
solidarity of peoples" asserted by Kossuth, the revolutionary
ex-governor of Hungary, the last stronghold of feudal barbarism
in Christian Europe; for Russia has emancipated her serfs.
The nation, as sovereign, is free to constitute government
according to its own judgment, under any form it
pleases--monarchical, aristocratic, democratic, or mixed--vest
all power in an hereditary monarch, in a class or hereditary
nobles, in a king and two houses of parliament, one hereditary,
the other elective, or both elective; or it may establish a
single, dual, or triple executive, make all officers of
government hereditary or all elective, and if elective, elective
for a longer or a shorter time, by universal suffrage or a select
body of electors. Any of these forms and systems, and many
others besides, are or may be legitimate, if established and
maintained by the national will. There is nothing in the law of
God or of nature, antecedently to the national will, that gives
any one of them a right to the exclusion of any one of the others.
The imperial system in France is as legitimate as the federative
system in the United States. The only form or system that is
necessarily illegal is the despotic. That can never be a truly
civilized government, nor a legitimate government, for God has
given to man no dominion over man. He gave men, as St. Augustine
says, and Pope St. Gregory the Great repeats, dominion over the
irrational creation, not over the rational, and hence the
primitive rulers of men were called pastors or shepherds, not
lords. It may be the duty of the people subjected to a despotic
government to demean themselves quietly and peaceably towards it,
as a matter of prudence, to avoid sedition, and the evils that
would necessarily follow an attempted revolution, but not
because, founded as it is on mere force, it has itself any right
or legality.
All other forms of government are republican in their essential
constitution, founded on public right, and held under God from
and for the commonwealth, and which of them is wisest and best
for the commonwealth is, for the most part, an idle question.
"Forms of government," somebody has said, "are like shoes--that
is the best form which best fit the feet that are to wear them."
Shoes are to be fitted to the feet, not the feet to the shoes,
and feet vary in size and conformation. There is, in regard to
government, as distinguished from the state, no antecedent right
which binds the people, for antecedently to the existence of the
government as a fact, the state is free to adopt any form that it
finds practicable, or judges the wisest and best for itself.
Ordinarily the form of the government practicable for a nation is
determined by the peculiar providential constitution of the
territorial people, and a form of government that would be
practicable and good in one country may be the reverse in another.
The English government is no doubt the best practicable in Great
Britain, at present at least, but it has proved a failure
wherever else it has been attempted. The American system has
proved itself, in spite of the recent formidable rebellion to
overthrow it, the best and only practicable government for the
United States, but it is impracticable everywhere else, and all
attempts by any European or other American state to introduce it
can end only in disaster. The imperial system apparently works
well in France, but though all European states are tending to it,
it would not work well at all on the American continent,
certainly not until the republic of the United States has ceased
to exist. While the United States remain the great American
power, that system, or its kindred system, democratic centralism,
can never become an American system, as Maximilian's experiment
in Mexico is likely to prove.
Political propagandism, except on the Roman plan, that is, by
annexation and incorporation, is as impracticable as it is
wanting in the respect that one independent people owes to
another. The old French Jacobins tried to propagate, even with
fire and sword, their system throughout Europe, as the only
system compatible with the rights of man. The English, since
1688, have been great political propagandists, and at one time it
seemed not unlikely that every European state would try the
experiment of a parliamentary government, composed of an
hereditary crown, an hereditary house of lords, and an elective
house of commons. The democratic Americans are also great
political propagandists, and are ready to sympathize with any
rebellion, insurrection, or movement in behalf of democracy in
any part of the world, however mean or contemptible, fierce or
bloody it may be; but all this is as unstatesmanlike as unjust;
unstatesmanlike, for no form of government can bear
transplanting, and because every independent nation is the sole
judge of what best comports with its own interests, and its
judgment is to be respected by the citizens as well as by the
governments of other states. Religious propagandism is a right
and a duty, because religion is catholic and of universal
obligation; and so is the jus gentium of the Romans, which is
only the application to individuals and nations of the great
principles of natural justice; but no political propagandism is
ever allowable, because no one form of government is catholic in
its nature, or of universal obligation.
Thoughtful Americans are opposed to political propagandism, and
respect the right of every nation to choose its own form of
government; but they hold that the American system is the best in
itself, and that if other nations were as enlightened as the
American, they would adopt it. But though the American system,
rightly understood, is the best, as they hold, it is not because
other nations are less enlightened, which is by no means a fact,
that they do not adopt, or cannot bear it, but solely because
their providential constitutions do not require or admit it, and
an attempt to introduce it in any of them would prove a failure
and a grave evil.
Fit your shoes to your feet. The law of the governmental
constitution is in that of the nation. The constitution of the
government must grow out of the constitution of the state, and
accord with the genius, the character, the habits, customs, and
wants of the people, or it will not work well, or tend to secure
the legitimate ends of government. The constitutions imagined by
philosophers are for Utopia, not for any actual, living,
breathing people. You must take the state as it is, and develop
your governmental constitution from it, and harmonize it with it.
Where there is a discrepancy between the two constitutions, the
government has no support in the state, in the organic people, or
nation, and can sustain itself only by corruption or physical
force. A government may be under the necessity of using force to
suppress an insurrection or rebellion against the national
authority, or the integrity of the national territory, but no
government that can sustain itself, not the state, only by
physical force or large standing armies, can be a good government,
or suited to the nation. It must adopt the most stringent
repressive measures, suppress liberty of speech and of conscience,
outrage liberty in what it has the most intimate and sacred, and
practise the most revolting violence and cruelty, for it can
govern only by terror. Such a government is unsuited to the
nation.
This is seen in all history: in the attempt of the dictator Sulla
to preserve the old patrician government against the plebeian
power that time and events had developed in the Roman state, and
which was about to gain the supremacy, as we have seen, at
Pharsalia, Philippi, and Actium; in the efforts to establish a
Jacobinical government in France in 1793; in Rome in 1848, and
the government of Victor Emmanuel in Naples in 1860 and 1861.
These efforts, proscriptions, confiscations, military executions,
assassinations, massacres, are all made in the name of liberty,
or in defence of a government supposed to guaranty the well-being
of the state and the rights of the people. They are rendered
inevitable by the mad attempt to force on a nation a constitution
of government foreign to the national constitution, or repugnant
to the national tastes, interests, habits, convictions, or whole
interior life. The repressive policy, adopted to a certain
extent by nearly all European governments, grows out of the
madness of a portion of the people of the several states in
seeking to force upon the nation an anti-national constitution.
The sovereigns may not be very wise, but they are wiser, more
national, more patriotic than the mad theorists who seek to
revolutionize the state and establish a government that has no
hold in the national traditions, the national character, or the
national life; and the statesman, the patriot, the true friend of
liberty sympathizes with the national authorities, not with the
mad theorists and revolutionists.
The right of a nation to change its form of government, and its
magistrates or representatives, by whatever name called, is
incontestable. Hence the French constitution of l789, which
involved that of 1793, was not illegal, for though accompanied by
some irregularities, it was adopted by the manifest will of the
nation, and consented to by all orders in the state. Not its
legality but its wisdom is to be questioned, together with the
false and dangerous theories of government which dictated it.
There is no compact or mutual stipulation between the state and
the government. The state, under God, is sovereign, and ordains
and establishes the government, instead of making a contract, a
bargain, or covenant, with it. The common democratic doctrine on
this point is right, if by people is understood the organic
people attached to a sovereign domain, not the people as
individuals or as a floating or nomadic multitude. By people in
the political sense, Cicero, and St. Augustine after him,
understood the people as the republic, organized in reference to
the common or public good. With this understanding, the
sovereignty persists in the people, and they retain the supreme
authority over the government. The powers delegated are still
the powers of the sovereign delegating them, and may be modified,
altered, or revoked, as the sovereign judges proper. The nation
does not, and cannot abdicate or delegate away its own
sovereignty, for sovereign it is, and cannot but be, so long as
it remains a nation not subjected to another nation.
By the imperial constitution of the French government, the
imperial power is vested in Napoleon III., and made hereditary in
his family, in the male line of his legitimate descendants. This
is legal, but the nation has not parted with its sovereignty or
bound itself by contract forever to a Napoleonic dynasty.
Napoleon holds the imperial power "by the grace of God and the
will of the nation," which means simply that he holds his
authority from God, through the French people, and is bound to
exercise it according to the law of God and the national will.
The nation is as competent to revoke this constitution as the
legislature is to repeal any law it is competent to enact, and in
doing so breaks no contract, violates no right, for Napoleon and
his descendants hold their right to the imperial throne subject
to the national will from which it is derived. In case the
nation should revoke the powers delegated, he or they would have
no more valid claim to the throne than have the Bourbons, whom
the nation has unmistakably dismissed from its service.
The only point here to be observed is, that the change must be by
the nation itself, in its sovereign capacity; not by a mob, nor
by a part of the nation conspiring, intriguing, or rebelling,
without any commission from the nation. The first Napoleon
governed by a legal title, but he was never legally dethroned,
and the government of the Bourbons, whether of the elder branch
or the younger, was never a legal government, for the Bourbons
had lost their original rights by the election of the first
Napoleon, and never afterwards had the national will in their
favor. The republic of 1848 was legal, in the sense that the
nation acquiesced in it as a temporary necessity; but hardly
anybody believed in it or wanted it, and the nation accepted it
as a sort of locum tenens, rather than willed or ordained it.
Its overthrow by the coup d'etat may not be legally defensible,
but the election of Napoleon III. condoned the illegality, if
there was any, and gave the emperor a legal title, that no
republican, that none but a despot or a no-government man can
dispute. As the will of the nation, in so far as it contravenes
not the law of God or the law of nature, binds every individual
of the nation, no individual or number of individuals has, or can
have, any right to conspire against him, or to labor to oust him
from his place, till his escheat has been pronounced by the voice
of the nation. The state, in its sovereign capacity, willing it,
is the only power competent to revoke or to change the form and
constitution of the imperial government. The same must be said
of every nation that has a lawful government; and this, while it
preserves the national sovereignty, secures freedom of progress,
condemns all sedition, conspiracy, rebellion, revolution, as does
the Christian law itself.
CHAPTER IX.
THE UNITED STATES
Sovereignty, under God, inheres in the organic people, or the
people as the republic; and every organic people fixed to the
soil, and politically independent of every other people, is a
sovereign people, and, in the modern sense, an independent
sovereign nation.
Sovereign states may unite in an alliance, league, or
confederation, and mutually agree to exercise their sovereign
powers or a portion of them in common, through a common organ or
agency; but in this agreement they part with none of their
sovereignty, and each remains a sovereign state or nation as
before. The common organ or agency created by the convention is
no state, is no nation, has no inherent sovereignty, and derives
all its vitality and force from the persisting sovereignty of the
states severally that have united in creating it. The agreement
no more affects the sovereignty of the several states entering
into it, than does the appointment of an agent affect the rights
and powers of the principal. The creature takes nothing from the
Creator, exhausts not, lessens not his creative energy, and it is
only by his retaining and continuously exerting his creative
power that the creature continues to exist.
An independent state or nation may, with or without its consent,
lose its sovereignty, but only by being merged in or subjected to
another. Independent sovereign states cannot by convention, or
mutual agreement, form themselves into a single sovereign state,
or nation. The compact, or agreement, is made by sovereign
states, and binds by virtue of the sovereign power of each of the
contracting parties. To destroy that sovereign power would be to
annul the compact, and render void the agreement. The agreement
can be valid and binding only on condition that each of the
contracting parties retains the sovereignty that rendered it
competent to enter into the compact, and states that retain
severally their sovereignty do not form a single sovereign state
or nation. The states in convention cannot become a new and
single sovereign state, unless they lose their several
sovereignty, and merge it in the new sovereignty; but this they
cannot do by agreement, because the moment the parties to the
agreement cease to be sovereign, the agreement, on which alone
depends the new sovereign state, is vacated, in like manner as a
contract is vacated by the death of the contracting parties.
That a nation may voluntarily cede its sovereignty is frankly
admitted, but it can cede it only to something or somebody
actually existing, for to cede to nothing and not to cede is one
and the same thing. They can part with their own sovereignty by
merging themselves in another national existence, but not by
merging themselves in nothing; and, till they have parted with
their own sovereignty, the new sovereign state does not exist. A
prince can abdicate his power, because by abdicating he simply
gives back to the people the trust he had received from them; but
a nation cannot, save by merging itself in another. An
independent state not merged in another, or that is not subject
to another, cannot cease to be a sovereign nation, even if it
would.
That no sovereign state can be formed by a agreement or compact
has already been shown in the refutation of the theory of the
origin of government in convention, or the so-called social
compact. Sovereign states are as unable to form themselves into
a single sovereign state by mutual compact as are the sovereign
individuals imagined by Rousseau. The convention, either of
sovereign states or of sovereign individuals, with the best will
in the world, can form only a compact or agreement between
sovereigns, and an agreement or compact, whatever its terms or
conditions, is only an alliance, a league, or a confederation,
which no one can pretend is a sovereign state, nation, or
republic.
The question, then, whether the United States are a single
sovereign state or nation, or a confederacy of independent
sovereign states depends on the question whether the American
people originally existed as one people or as several independent
states. Mr. Jefferson maintains that before the convention of
1787 they existed as several independent sovereign states, but
that since that convention, or the ratification of the
constitution it proposed, they exist as one political people in
regard to foreign nations, and several sovereign states in regard
to their internal and domestic relations. Mr. Webster concedes
that originally the States existed as severally sovereign states,
but contends that by ratifying the constitution they have been
made one sovereign political people, state, or nation, and that
the General government is a supreme national government, though
with a reservation in favor of State rights. But both are wrong.
If the several States of the Union were severally sovereign
states when they met in the convention, they are so now; and the
constitution is only an agreement or compact between sovereigns,
and the United States are, as Mr. Calhoun maintained, only a
confederation of sovereign states, and not a single state or one
political community.
But if the sovereignty persists in the States severally, any
State, saving its faith, may whenever it chooses to do so,
withdraw from the Union, absolve its subjects from all obligation
to the Federal authorities, and make it treason in them to adhere
to the Federal government. Secession is, then, an incontestable
right; not a right held under the constitution or derived from
the convention but a right held prior to it, independently of it,
inherent in the State sovereignty, and inseparable from it. The
State is bound by the constitution of the Union only while she is
in it, and is one of the States united. In ratifying the
constitution she did not part with her sovereignty, or with any
portion of it, any more than France has parted with her
sovereignty, and ceased to be an independent sovereign nation, by
vesting the imperial power in Napoleon III. and his legitimate
heirs male. The principal parts not with his power to his agent,
for the agent is an agent only by virtue of the continued power
of the principal. Napoleon is emperor by the will of the French
people, and governs only by the authority of the French nation,
which is as competent to revoke the powers it has conferred on
him, when it judges proper, as it was to confer them. The Union
exists and governs, if the States are sovereign, only by the will
of the State, and she is as competent to revoke the powers she
has delegated as she was to delegate them. The, Union, as far as
she is concerned, is her creation, and what she is competent to
make she is competent to unmake.
In seceding or withdrawing from the Union a State may act very
unwisely, very much against her own interests and the interests
of the other members of the confederacy; but, if sovereign, she
in doing so only exercises her unquestionable right. The other
members may regret her action, both for her sake and their own,
but they cannot accuse her or her citizens of disloyalty in
seceding, nor of rebellion, if in obedience to her authority they
defend their independence by force of arms against the Union.
Neither she nor they, on the supposition, ever owed allegiance to
the Union. Allegiance is due from the citizen to the sovereign
state, but never from a sovereign state or from its citizens to
any other sovereign state. While the State is in the Union the
citizen owes obedience to the United States, but only because his
State has, in ratifying the Federal constitution, enacted that it
and all laws and treaties made under it shall be law within her
territory. The repeal by the State of the act of ratification
releases the citizen from the obligation even of obedience, and
renders it criminal for him to yield it without her permission.
It avails nothing, on the hypothesis of the sovereignty of the
States as distinguished from that of the United States, to appeal
to the language or provisions of the Federal constitution. That
constitutes the government, not the state or the sovereign. It
is ordained by the sovereign, and if the States were severally
independent and sovereign states, that sovereign is the States
severally, not the States united. The constitution is law for
the citizens of a State only so long as the State remains one of
the United States. No matter, then, how clear and express the
language, or stringent the provisions of the constitution, they
bind only the citizens of the States that enact the constitution.
The written constitution is simply a compact, and obliges only
while the compact is continued by the States, each for itself.
The sovereignty of the United States as a single or political
people must be established before any thing in the constitution
can be adduced as denying the right of secession.
That this doctrine would deprive the General government of all
right to enforce the laws of the Union on a State that secedes,
or the citizens thereof, is no doubt true; that it would weaken
the central power and make the Union a simple voluntary
association of states, no better than a rope of sand, is no less
true; but what then? It is simply saying that a confederation is
inferior to a nation, and that a federal government lacks many of
the advantages of a national government. Confederacies are
always weak in the centre, always lack unity, and are liable to
be dissolved by the influence of local passions, prejudices, and
interests. But if the United States are a confederation of
states or nations, not a single nation or sovereign state, then
there is no remedy.
If the Anglo-American colonies, when their independence of Great
Britain was achieved and acknowledged, were severally sovereign
states, it has never since been in their power to unite and form
a single sovereign state, or to form themselves into one
indivisible sovereign nation. They could unite only by mutual
agreement, which gives only a confederation, in which each
retains its own sovereignty, as two individuals, however closely
united, retain each his own individuality. No sovereignty is of
conventional origin, and none can emerge from the convention that
did not enter it. Either the states are one sovereign people or
they are not. If they are not, it is undoubtedly a great
disadvantage; but a disadvantage that must be accepted, and
submitted to without a murmur.
Whether the United States are one sovereign people or only a
confederation is a question of very grave importance. If they
are only a confederation of states--and if they ever were
severally sovereign states, only a confederation they certainly
are--state secession is an inalienable right, and the government
has had no right to make war on the secessionists as rebels, or
to treat them, when their military power is broken, as traitors,
or disloyal persons. The honor of the government, and of the
people who have sustained it, is then deeply compromised.
What then is the fact? Are the United States politically one
people, nation, state, or republic, or are they simply
independent sovereign states united in close and intimate
alliance, league, or federation, by a mutual pact or agreement?
Were the people of the United States who ordained and established
the written constitution one people, or were they not? If they
were not before ordaining and establishing the government, they
are not now; for the adoption of the constitution did not and
could not make them one. Whether they are one or many is then
simply a question of fact, to be decided by the facts in the
case, not by the theories of American statesmen, the opinion of
jurists, or even by constitutional law itself. The old Articles
of Conferation and the later Constitution can serve here only as
historical documents. Constitutions and laws presuppose the
existence of a national sovereign from which they emanate, and
that ordains them, for they are the formal expression of a
sovereign will. The nation must exist as an historical fact,
prior to the possession or exercise of sovereign power, prior to
the existence of written Constitutions and laws of any kind, and
its existence must be established before they can be recognized
as having any legal force or vitality.
The existence of any nation, as an independent sovereign nation,
is a purely historical fact, for its right to exist as such is in
the simple fact that it does so exist. A nation de facto is a
nation de jure, and when we have ascertained the fact, we have
ascertained the right. There is no right in the case separate
from the fact--only the fact must be really a fact. A people
hitherto a part of another people, or subject to another
sovereign, is not in fact a nation, because they have declared
themselves independent, and have organized a government, and are
engaged in what promises to be a successful struggle for
independence. The struggle must be practically over; the former
sovereign must have practically abandoned the effort to reduce
them to submission, or to bring them back under his authority,
and if he continues it, does it as a matter of mere form; the
postulant must have proved his ability to maintain civil
government, and to fulfil within and without the obligations
which attach to every civilized nation, before it can be
recognized as an independent sovereign nation; because before it
is not a fact that it is a sovereign nation. The prior
sovereign, when no longer willing or able to vindicate his right,
has lost it, and no one is any longer bound to respect it, for
humanity demands not martyrs to lost causes.
This doctrine may seem harsh, and untenable even, to those sickly
philanthropists who are always weeping over extinct or oppressed
nationalities; but nationality in modern civilization is a fact,
not a right antecedent to the fact. The repugnance felt to this
assertion arises chiefly from using the word nation sometimes in
a strictly political sense, and sometimes in its original sense
of tribe, and understanding by it not simply the body politic,
but a certain relation of origin, family, kindred, blood, or
race. But God has made of one blood, or race, all the nations of
men; and, besides, no political rights are founded by the law of
nature on relations of blood, kindred, or family. Under the
patriarchal or tribal system, and, to some extent, under
feudalism, these relations form the basis of government, but they
are economical relations rather than civil or political, and,
under Christian and modern civilization, are restricted to the
household, are domestic relations, and enter not the state or
body politic, except by way of reminiscence or abuse. They are
protected by the state, but do not found or constitute it. The
vicissitudes of time, the revolutions of states and empires,
migration, conquest, and intermixture of families and races, have
rendered it impracticable, even if it were desirable, to
distribute people into nations according to their relations of
blood or descent.
There is no civilized nation now existing that has been,
developed from a common ancestor this side of Adam, and the most
mixed are the most civilized. The nearer a nation approaches to
a primitive people of pure unmixed blood, the farther removed it
is from civilization. All civilized nations are political
nations, and are founded in the fact, not on rights antecedent to
the fact. A hundred or more lost nationalities went to form the
Roman empire, and who can tell us how many layers of crushed
nationalities, superposed one upon another, serve for the
foundation of the present French, English, Russian, Austrian, or
Spanish nationalities? What other title to independence and
sovereignty, than the fact, can you plead in behalf of any
European nation? Every one has absorbed and extinguished--no one
can say how many--nationalities, that once had as good a right to
be as it has, or can have. Whether those nationalities have been
justly extinguished or not, is no question for the statesman; it
is the secret of Providence. Failure in this world is not always
a proof of wrong; nor success, of right. The good is sometimes
overborne, and the bad sometimes triumphs; but it is
consoling, and even just, to believe that the good oftener
triumphs than the bad.
In the political order, the fact, under God, precedes the law.
The nation holds not from the law, but the law holds from the
nation. Doubtless the courts of every civilized nation recognize
and apply both the law of nature and the law of nations, but only
on the ground that they are included, or are presumed to be
included, in the national law, or jurisprudence. Doubtless, too,
the nation holds from God, under the law of nature, but only by
virtue of the fact that it is a nation; and when it is a nation
dependent on no other, it holds from God all the rights and
powers of any independent sovereign nation. There is no right
behind the fact needed to legalize the fact, or to put the nation
that is in fact a nation in possession of full national rights.
In the case of a new nation, or people, lately an integral part
of another people, or subject to another people@ the right of the
prior sovereign must be extinguished indeed, but the extinction
of that right is necessary to complete the fact, which otherwise
would be only an initial, inchoate fact, not a fait accompli.
But that right ceases when its claimant, willingly or
unwillingly, formally or virtually, abandons it; and he does so
when he practically abandons the struggle, and shows no ability
or intention of soon renewing it with any reasonable prospect of
success.
The notion of right, independent of the fact as applied to
sovereignty, is founded in error. Empty titles to states and
kingdoms are of no validity. The sovereignty is, under God, in
the nation and the title and the possession are inseparable. The
title of the Palaeologi to the Roman Empire of the East, of the
king of Sicily, the king of Sardinia, or the king of Spain--for
they are all claimants--to the kingdom of Jerusalem founded by
Godfrey and his crusaders, of the Stuarts to the thrones of
England, Ireland, and Scotland, or of the Bourbons to the throne
of France, are vacated and not worth the parchment on which they
are engrossed. The contrary opinion, so generally entertained,
belongs to barbarism, not to civilization. It is in modern
society a relic of feudalism, which places the state in the
government, and makes the government a private estate--a private,
and not a public right--a right to govern the public, not a right
to govern held from or by the public.
The proprietor may be dispossessed in fact of his estate by
violence, by illegal or unjust means, without losing his right,
and another may usurp it, occupy it, and possess it in fact
without acquiring any right or legal title to it. The man who
holds the legal title has the right to oust him and re-enter upon
his estate whenever able to do so. Here, in the economical
order, the fact and the right are distinguishable, and the actual
occupant may be required to show his title-deeds. Holding
sovereignty to be a private estate, the feudal lawyers very
properly distinguish between governments de facto and governments
de jure, and argue very logically that violent dispossession of a
prince does not invalidate his title. But sovereignty, it has
been shown, is not in the government, but in the state, and the
state is inseparable from the public domain. The people
organized and held by the domain or national territory, are under
God the sovereign nation, and remain so as long as the nation
subsists without subjection to another. The government, as
distinguished from the state or nation, has only a delegated
authority, governs only by a commission from the nation. The
revocation of the commission vacates, its title and extinguishes
its rights. The nation is always sovereign, and every organic
people fixed to the soil, and actually independent of every
other, is a nation. There can then be no independent nation de
facto that is not an independent nation de jure, nor de jure that
is not de facto. The moment a people cease to be an independent
nation in fact, they cease to be sovereign, and the moment they
become in fact an independent nation, they are so of right.
Hence in the political order the fact and the right are born and
expire together; and when it is proved that a people, are in fact
an independent nation, there is no question to be asked as to
their right to be such nation.
In the case of the United States there is only the question of
fact. If they are in fact one people they are so in right,
whatever the opinions and theories of statesmen, or even the
decisions of courts; for the courts hold from the national
authority, and the theories and opinions of statesmen may be
erroneous. Certain it is that the States in the American Union
have never existed and acted as severally sovereign states.
Prior to independence, they were colonies under the sovereignty
of Great Britain, and since independence they have existed and
acted only as states united. The colonists, before separation
and independence, were British subjects, and whatever rights the
colonies had they held by charter or concession from the British
crown. The colonists never pretended to be other than British
subjects, and the alleged ground of their complaint against the
mother country was not that she had violated their natural rights
as men, but their rights as British subjects--rights, as
contended by the colonists, secured by the English constitution
to all Englishmen or British su6jects. The denial to them of
these common rights of Englishmen they called tyranny, and they
defended themselves in throwing off their allegiance to George III.,
on the ground that he had, in their regard, become a tyrant, and
the tyranny of the prince absolves the subject from his
allegiance.
In the Declaration of Independence they declared themselves
independent states indeed, but not severally independent. The
declaration was not made by the states severally, but by the
states jointly, as the United States. They unitedly declared
their independence; they carried on the war for independence, won
it, and were acknowledged by foreign powers and by the mother
country as the United States, not as severally independent
sovereign states. Severally they have never exercised the full
powers of sovereign states; they have had no flag--symbol of
sovereignty--recognized by foreign powers, have made no foreign
treaties, held no foreign relations, had no commerce foreign or
interstate, coined no money, entered into no alliances or
confederacies with foreign states or with one another, and in
several respects have been more restricted in their powers in the
Union than they were as British colonies.
Colonies are initial or inchoate states, and become complete
states by declaring and winning their independence; and if the
English colonies, now the United States, had separately declared
and won their independence, they would unquestionably have become
separately independent states, each invested by the law of nature
with all the rights and powers of a sovereign nation. But they
did not do this. They declared and won their independence
jointly, and have since existed and exercised sovereignty only as
states united, or the United States, that is, states sovereign in
their union, but not in their separation. This is of itself
decisive of the whole question.
But the colonists have not only never exercised the full powers
of sovereignty save as citizens of states united, therefore as
one people, but they were, so far as a people at all, one people
even before independence. The colonies were all erected and
endowed with their rights and powers by one and the same national
authority, and the colonists were subjects of one and the same
national sovereign. Mr. Quincy Adams, who almost alone among our
prominent statesmen maintains the unity of the colonial people,
adds indeed to their subjection to the same sovereign authority,
community of origin, of language, manners, customs, and law. All
these, except the last, or common law, may exist without national
unity in the modern political sense of the term nation. The
English common law was recognized by the colonial courts, and in
force in all the colonies, not by virtue of colonial legislation,
but by virtue of English authority, as expressed in English
jurisprudence. The colonists were under the Common Law, because
they were Englishmen, and subjects of the English sovereign.
This proves that they were really one people with the English
people, though existing in a state of colonial dependence, and
not a separate people having nothing politically in common with
them but in the accident of having the same royal person for
their king. The union with the mother country was national, not
personal, as was the union existing between England and Hanover,
or that still existing between the empire of Austria, formerly
Germany, and the kingdom of Hungary; and hence the British
parliament claimed, and not illegally, the right to tax the
colonies for the support of the empire, and to bind them in all
cases whatsoever--a claim the colonies themselves admitted in
principle by recognizing and observing the British navigation
laws. The people of the several colonies being really one people
before independence, in the sovereignty of the mother country,
must be so still, unless they have since, by some valid act,
divided themselves or been divided into separate and independent
states.
The king, say the jurists, never dies, and the heralds cry, "The
king is dead! Live the king!" Sovereignty never lapses, is never
in abeyance, and the moment it ceases in one people it is renewed
in another. The British sovereignty ceased in the colonies with
independence, and the American took its place. Did the
sovereignty, which before independence was in Great Britain, pass
from Great Britain to the States severally, or to the States
united? It might have passed to them severally, but did it?
There is no question of law or antecedent right in the case, but
a simple question of fact, and the fact is determined by
determining who it was that assumed it, exercised it, and has
continued to exercise it. As to this there is no doubt. The
sovereignty as a fact has been assumed and exercised by the
United States, the States united, and never by the States
separately or severally. Then as a fact the sovereignty that
before independence was in Great Britain, passed, on independence
to the States united, and reappears in all its vigor in the
United States, the only successor to Great Britain known to or
recognized by the civilized world.
As the colonial people were, though distributed in distinct
colonies, still one people, the people of the United States,
though distributed into distinct and mutually independent States,
are yet one sovereign people, therefore a sovereign state or
nation, and not a simple league or confederacy of nations.
There is no doubt that all the powers exercised by the General
Government, though embracing all foreign relations and all
general interests and relations of all the States, might have
been exercised by it under the authority of a mutual compact of
the several States, and practically the difference between the
compact theory and the national view would be very little, unless
in cases like that of secession. On the supposition that the
American people are one political people, the government would
have the right to treat secession, in the sense in which the
seceders understand it, as rebellion, and to suppress it by
employing all the physical force at its command; but on the
compact theory it would have no such right. But the question now
under discussion turns simply on what has been and is the
historical fact. Before the States could enter into the compact
and delegate sovereign powers to the Union, they must have
severally possessed them. It is historically certain that they
did not possess them before independence; they did not obtain
them by independence, for they did not severally succeed to the
British sovereignty, to which they succeeded only as States
united. When, then, and by what means did they or could they
become severally sovereign States? The United States having
succeeded to the British sovereignty in the Anglo-American
colonies, they came into possession of full national sovereignty,
and have alone held and exercised it ever since independence
became a fact. The States severally succeeding only to the
colonies, never held, and have never been competent to delegate
sovereign powers.
The old Articles of Confederation, it is conceded, were framed on
the assumption that the States are severally sovereign; but the
several States, at the same time, were regarded as forming one
nation, and, though divided into separate States, the people were
regarded as one people. The Legislature of New York, as early as
1782, calls for an essential change In the Articles of
Confederation, as proved to be inadequate to secure the peace,
security, and prosperity of "the nation." All the proceedings
that preceded and led to the call of the convention of 1781 were
based on the assumption that the people of the United States were
one people. The States were called united, not confederated
States, even in the very Articles of Confederation themselves,
and officially the United States were called "the Union." That
the united colonies by independence became united States, and
formed really one and only one people, was in the thought, the
belief, the instinct of the great mass of the people. They acted
as they existed through State as they had previously acted
through colonial organization, for in throwing off the British
authority there was no other organization through which they
could act. The States, or people of the States, severally sent
their delegates to the Congress of the United States, and these
delegates adopted the rule of voting in Congress by States, a
rule that might be revived without detriment to national unity.
Nothing was more natural, then, than that Congress, composed of
delegates elected or appointed by States, should draw up articles
of confederation rather than articles of union, in order, if for
no other reason, to conciliate the smaller States, and to prevent
their jealousy of the larger States such as Virginia,
Massachusetts, and Pennsylvania.
Moreover, the Articles of Confederation were drawn up and adopted
during the transition from colonial dependence to national
independence. Independence was declared in 1776, but it was not
a fact till l782, when the preliminary treaty acknowledging it
was signed at Paris. Till then the United States were not an
independent nation; they were only a people struggling to become
an independent nation. Prior to that preliminary treaty, neither
the Union nor the States severally were sovereign. The articles
were agreed on in Congress in 1777, but they were not ratified by
all the States till May, 1781, and in 1782 the movement was
commenced in the Legislature of New York for their amendment.
Till the organization under the constitution ordained by the
people of the United States in l787, and which went into
operation in 1789, the United States had in reality only a
provisional government, and it was not till then that the
national government was definitively organized, and the line of
demarcation between the General Government and the particular
State governments was fixed.
The Confederation was an acknowledged failure, and was rejected
by the American people, precisely because it was not in harmony
with the unwritten or Providential constitution of the nation;
and it was not in harmony with that constitution precisely
because it recognized the States as severally sovereign, and
substituted confederation for union. The failure of
confederation and the success of union are ample proofs of the
unity of the American nation. The instinct of unity rejected
State sovereignty in 1787 as it did in 1861. The first and the
last attempt to establish State sovereignty have failed, and the
failure vindicates the fact that the sovereignty is in the States
united, not in the States severally.
CHAPTER X
CONSTITUTION OF THE UNITED STATES
The constitution of the United States is twofold, written and
unwritten, the constitution of the people and the constitution of
the government.
The written constitution is simply a law ordained by the nation
or people instituting and organizing the government; the
unwritten constitution is the real or actual constitution of the
people as a state or sovereign community, and constituting them
such or such a state. It is Providential, not made by the
nation, but born with it. The written constitution is made and
ordained by the sovereign power, and presupposes that power as
already existing and constituted.
The unwritten or Providential constitution of the United States
is peculiar, and difficult to understand, because incapable of
being fully explained by analogies borrowed from any other state
historically known, or described by political philosophers. It
belongs to the Graeco-Roman family, and is republican as
distinguished from despotic constitutions, but it comes under the
head of neither monarchical nor aristocratic, neither democratic
nor mixed constitutions, and creates a state which is neither a
centralized state nor a confederacy. The difficulty of
understanding it is augmented by the peculiar use under it of the
word state, which does not in the American system mean a
sovereign community or political society complete in itself, like
France, Spain, or Prussia, nor yet a political society
subordinate to another political society and dependent on it.
The American States are all sovereign States united, but,
disunited, are no States at all. The rights and powers of the
States are not derived from the United States, nor the rights and
powers of the United States derived from the States.
The simple fact is, that the political or sovereign people of the
United States exists as united States, and only as united States.
The Union and the States are coeval, born together, and can exist
only together. Separation is dissolution--the death of both.
The United States are a state, a single sovereign state; but this
single sovereign state consists in the union and solidarity of
States instead of individuals. The Union is in each of the
States, and each of the States is in the Union.
It is necessary to distinguish in the outset between the United
States and the government of the United States, or the so-called
Federal government, which the convention refused, contrary to its
first intention to call the national government. That government
is not a supreme national government, representing all the powers
of the United States, but a limited government, restricted by its
constitution to certain specific relations and interests. The
United States are anterior to that government, and the first
question to be settled relates to their internal and inherent
Providential constitution as one political people or sovereign
state. The written constitution, in its preamble, professes to
be ordained by "We, the people of the United States." Who are
this people? How are they constituted, or what the mode and
conditions of their political existence? Are they the people of
the States severally? No; for they call themselves the people of
the United States. Are they a national people, really existing
outside and independently of their organization into distinct and
mutually independent States? No; for they define themselves to
be the people of the United States. If they had considered
themselves existing as States only, they would have said "We, the
States," and if independently of State organization, they would
have said "We, the people," do ordain, &c.
The key to the mystery is precisely in this appellation United
States, which is not the name of the country, for its distinctive
name is America, but a name expressive of its political
organization. In it there are no sovereign people without
States, and no States without union, or that are not united
States. The term united is not part of a proper name, but is
simply an adjective qualifying States, and has its full and
proper sense. Hence while the sovereignty is and must be in the
States, it is in the States united, not in the States severally,
precisely as we have found the sovereignty of the people is in
the people collectively or as society, not in the people
individually. The life is in the body, not in the members,
though the body could not exist if it had no members; so the
sovereignty is in the Union, not in the States severally; but
there could be no sovereign union without the States, for there
is no union where there is nothing united.
This is not a theory of the constitution, but the constitutional
fact itself. It is the simple historical fact that precedes the
law and constitutes the law-making power. The people of the
United States are one people, as has already been proved: they
were one people, as far as a people at all, prior to
independence, because under the same Common Law and subject to
the same sovereign, and have been so since, for as united States
they gained their independence and took their place among
sovereign nations, and as united States they have possessed and
still possess the government. As their existence before
independence in distinct colonies did not prevent their unity,
so their existence since in distinct States does not hinder them
from being one people. The States severally simply continue the
colonial organizations, and united they hold the sovereignty that
was originally in the mother country. But if one people, they
are one people existing in distinct State organizations, as
before independence they were one people existing in distinct
colonial organizations. This is the original, the unwritten, and
Providential constitution of the people of the United States.
This constitution is not conventional, for it existed before the
people met or could meet in convention. They have not, as an
independent sovereign people, either established their union, or
distributed themselves into distinct and mutually independent
States. The union and the distribution, the unity and the
distinction, are both original in their constitution, and they
were born United States, as much and as truly so as the son of a
citizen is born a citizen, or as every one born at all is born a
member of society, the family, the tribe, or the nation. The
Union and the States were born together, are inseparable in their
constitution, have lived and grown up together; no serious
attempt till the late secession movement has been made to
separate them; and the secession movement, to all persons who
knew not the real constitution of the United States, appeared
sure to succeed, and in fact would have succeeded if, as the
secessionists pretended, the Union had been only a confederacy,
and the States had been held together only by a conventional
compact, and not by a real and living bond of unity. The popular
instinct of national unity, which seemed so weak, proved to be
strong enough to defeat the secession forces, to trample out the
confederacy, and maintain the unity of the nation and the
integrity of its domain.
The people can act only as they exist, as they are, not as they
are not. Existing originally only as distributed in distinct and
mutually independent colonies, they could at first act only
through their colonial organizations, and afterward only through
their State organizations. The colonial people met in
convention, in the person of representatives chosen by colonies,
and after independence in the person of representatives chosen by
States. Not existing outside of the colonial or State
organizations, they could not act outside or independently of
them. They chose their representatives or delegates by colonies
or States, and called at first their convention a Congress; but
by an instinct surer than their deliberate wisdom, they called it
not the Congress of the confederate, but of the United States,
asserting constitutional unity as well as constitutional
multiplicity. It is true, in their first attempt to organize a
general government, they called the constitution they devised
Articles of Confederation, but only because they had not attained
to full consciousness of themselves; and that they really meant
union, not confederation, is evident from their adopting, as the
official style of the nation or new power, united, not
confederate States.
That the sovereignty vested in the States united, and was
represented in some sort by the Congress, is evident from the
fact that the several States, when they wished to adopt State
constitutions in place of colonial charters, felt not at liberty
to do so without asking and obtaining the permission of Congress,
as the elder Adams informs us in his Diary, kept at the time;
that is, they asked and obtained the equivalent of what has
since, in the case of organizing new States, been called an
"enabling act." This proves that the States did not regard
themselves as sovereign States out of the Union, but as
completely sovereign only in it. And this again proves that the
Articles of Confederation did not correspond to the real, living
constitution of the people. Even then it was felt that the
organization and constitution of a State in the Union could be
regularly effected only by the permission of Congress; and no
Territory can, it is well known, regularly organize itself as a
State, and adopt a State constitution, without an enabling act by
Congress, or its equivalent.
New States, indeed, have been organized and been admitted into
the Union without an enabling act of Congress; but the case of
Kansas, if nothing else, proves that the proceeding is irregular,
illicit, invalid, and dangerous. Congress, of course, can
condone the wrong and validate the act, but it were better that
the act should be validly done, and that there should be no wrong
to condone. Territories have organized as States, adopted State
constitutions, and instituted State governments under what has
been called "squatter sovereignty;" but such sovereignty has no
existence, because sovereignty is attached to the domain; and the
domain is in the United States. It is the offspring of that
false view of popular sovereignty which places it in the people
personally or generically, irrespective of the domain, which
makes sovereignty a purely personal right, not a right fixed to
the soil, and is simply a return to the barbaric constitution of
power. In all civilized nations, sovereignty is inseparable from
the state, and the state is inseparable from the domain. The
will of the people, unless they are a state, is no law, has no
force, binds nobody, and justifies no act.
The regular process of forming and admitting new States explains
admirably the mutual relation of the Union and the several
States. The people of a Territory belonging to the United States
or included in the public domain not yet erected into a State and
admitted into the Union, are subjects of the United States,
without any political rights whatever, and, though a part of the
population, are no part of the sovereign people of the United
States. They become a part of that people, with political rights
and franchises, only when they are erected into a State, and
admitted into the Union as one of the United States. They may
meet in convention, draw up and adopt a constitution declaring or
assuming them to be a State, elect State officers, senators, and
representatives in the State legislature, and representatives and
senators in Congress, but they are not yet a State, and are, as
before, under the Territorial government established by the
General Government. It does not exist as a State till recognized
by Congress and admitted into the Union. The existence of the
State, and the rights and powers of the people within the State,
depend on their being a State in the Union, or a State united.
Hence a State erected on the national domain, but itself outside
of the Union, is not an independent foreign State, but simply no
State at all, in any sense of the term. As there is no union
outside of the States, so is there no State outside of the Union;
and to be a citizen either of a State or of the United States, it
is necessary to be a citizen of a State, and of a State in the
Union. The inhabitants of Territories not yet erected into
States are subjects, not citizens--that is, not citizens with
political rights. The sovereign people are not the people
outside of State organization, nor the people of the States
severally, but the distinct people of the several States united,
and therefore most appropriately called the people of the United
States.
This is the peculiarity of the American constitution and is
substantially the very peculiarity noted and dwelt upon by
Mr. Madison in his masterly letter to Edward Everett, published
in the "North American Review," October, 1830.
"I In order to understand the true character of the constitution
of the United States," says Mr. Madison, "the error, not
uncommon, must be avoided of viewing it through the medium either
of a consolidated government or of a confederated government,
whilst it is neither the one nor the other, but a mixture of
both. And having, in no model, the similitudes and analogies
applicable to other systems of government, it must, more than any
other, be its own interpreter, according to its text and the
facts in the case.
"From these it will be seen that the characteristic peculiarities
of the constitution are: 1. The mode of its formation. 2. The
division of the supreme powers of government between the States
in their united capacity and the States in their individual
capacities.
"1. It was formed not by the governments of the component States,
as the Federal Government, for which it was substituted, was
formed; nor was it formed by a majority of the people of the
United States as a single community, in the manner of a
consolidated government. It was formed by the States; that is,
by the people in each of the States, acting in their highest
sovereign capacity, and formed consequently by the same authority
which formed the State constitution.
"Being thus derived from the same source as the constitutions of
the States, it has within each State the same authority as the
constitution of the State, and is as much a constitution in the
strict sense of the term, within its prescribed sphere, as the
constitutions of the States are within their respective spheres;
but with this obvious and essential difference, that, being a
compact among the States in their highest capacity, and
constituting the people thereof one people for certain purposes,
it cannot be altered or annulled at the will of the States
individually, as the constitution of a State may be at its
individual will.
"2. And that it divides the supreme powers of government between
the government of the United States and the governments of the
individual States, is stamped on the face of the instrument; the
powers of war and of taxation, of commerce and treaties, and
other enumerated powers vested in the government of the United
States, are of high and sovereign a character as any of the
powers reserved to the State governments."
Mr. Jefferson, Mr. Webster, Chancellor Kent, Judge Story, and
nearly all the old Republicans, and even the old Federalists, on
the question as to what is the actual constitution of the United
States, took substantially the same view; but they all, as well
as Mr. Madison himself, speak of the written constitution, which
on their theory has and can have only a conventional value.
Mr. Madison evidently recognizes no constitution of the people
prior to the written constitution, from which the written
constitution, or the constitution of the government, derives all
its force and vitality. The organization of the American people,
which he knew well--no man better,--and which he so justly
characterizes, he supposes to have been deliberately formed by
the people themselves, through the convention--not given them by
Providence as their original and inherent constitution. But this
was merely the effect of the general doctrine which he had
adopted, in common with nearly all his contemporaries, of the
origin of the state in compact, and may be eliminated from his
view of what the constitution actually is, without affecting that
view itself.
Mr. Madison lays great stress on the fact that though the
constitution of the Union was formed by the States, it was
formed, not by the governments, but by the people of the several
States; but this makes no essential difference, if the people are
the people of the States, and sovereign in their severalty, and
not in their union. Had it been formed by the State governments
with the acquiescence of the people, it would have rested on as
high authority as if formed by the people of the State in
convention assembled. The only difference is, that if the State
ratified it by the legislature, she could abrogate it by the
legislature; if in convention, she could abrogate it only in
convention. Mr. Madison, following Mr. Jefferson, supposes the
constitution makes the people of the several States one people
for certain specific purposes, and leaves it to be supposed that
in regard to all other matters, or in all other relations, they
are sovereign; and hence he makes the government a mixture of a
consolidated government and a confederated government, but
neither the one nor the other exclusively. Say the people of the
United States were one people in all respects, and under a
government which is neither a consolidated nor a confederated
government, nor yet a mixture of the two, but a government in
which the powers of government are divided between a general
government and particular governments, each emanating from the
same source, and you will have the simple fact, and precisely
what Mr. Madison means, when is eliminated what is derived from
his theory of the origin of government in compact. It is this
theory of the conventional origin of the constitution, and which
excludes the Providential or real constitution of the people,
that has misled him and so many other eminent statesmen and
constitutional lawyers.
The convention did not create the Union or unite the States, for
it was assembled by the authority of the United States who were
present in it. The United States or Union existed before the
convention, as the convention itself affirms in declaring one of
its purposes to be "to provide for a more perfect union." If
there had been no union, it could not and would not have spoken
of providing for a more perfect union, but would have stated its
purpose to be to create or form a union. The convention did not
form the Union, nor in fact provide for a more perfect union; it
simply provided for the more perfect representation or expression
in the General government of the Union already existing. The
convention, in common with the statesmen at the time, recognized
no unwritten or Providential constitution of a people, and
regarded the constitution of government as the constitution of
the state, and consequently sometimes put the state for the
government. In intepreting its language, it is necessary to
distinguish between its act and its theory. Its act is law, its
theory is not. The convention met, among other things, to
organize a government which should more perfectly represent the
union of the States than did the government created by the
Articles of Confederation.
The convention, certainly, professes to grant or concede powers
to the United States, and to prohibit powers to the States; but
it simply puts the state for the government. The powers of the
United States are, indeed, grants or trusts, but from God through
the law of nature, and are grants, trusts, or powers always
conceded to every nation or sovereign people. But none of them
are grants from the convention. The powers the convention grants
or concedes to the United States are powers granted or conceded
by the United States to the General government it assembled to
organize and establish, which, as it extends over the whole
population and territory of the Union, and, as the interests it
is charged with relate to all the States in common, or to the
people as a whole, is with no great impropriety called the
government of the United States, in contradistinction from the
State governments, which have each only a local jurisdiction.
But the more exact term is, for the one, the general government,
and for the others, particular governments, as having charge only
of the particular interests of the State; and the two together
constitute the government of the United States, or the complete
national government; for neither the General government nor the
State government is complete in itself. The convention developed
a general government, and prescribed its powers, and fixed their
limits and extent, as well as the bounds of the powers of the
State or particular governments; but they are the United States
assembled in convention that do all this, and, therefore,
strictly speaking, no powers are conceded to the United States
that they did not previously possess. The convention itself, in
the constitution it ordained, defines very clearly from whom the
General government holds its powers. It holds them, as we I
have seen, from "We, the people of the United States;" not we,
the people of the States severally, but of the States united. If
it had meant the States severally, it would have said, We, the
States; if it had recognized and meant the population of the
country irrespective of its organization into particular States,
it would have said simply, We, the people. By saying "We, the
people of the United States," it placed the sovereign power where
it is, in the people of the States united.
The convention ordains that the powers not conceded to the
General government or prohibited to the particular governments,
"are reserved to the States respectively, or to the people." But
the powers reserved to the States severally are reserved by order
of the United States, and the powers not so reserved are reserved
to the people. What people? The first thought is that they are
the people of the States severally; for the constitution
understands by people the state as distinguished from the state
government; but if this had been its meaning in this place, it
would have said, "are reserved to the States respectively, or to
the people" thereof. As it does not say so, and does not define
the people it means, it is necessary to understand by them the
people called in the preamble "the people of the United States."
This is confirmed by the authority reserved to amend the
constitution, which certainly is not reserved to the States
severally, but necessarily to the power that ordains the
constitution--"We, the people of the United States." No power
except that which ordains is or can be competent to amend a
constitution of government. The particular mode prescribed by
the convention in which the constitution of the government may be
amended has no bearing on the present argument, because it is
prescribed by the States united, not severally, and the power to
amend is evidently reserved, not indeed to the General
government, but to the United States; for the ratification by any
State or Territory not in the Union counts for nothing. The
States united, can, in the way prescribed, give more or less
power to the General government, and reserve more or less power
to the States individually. The so-called reserved powers are
really reserved to the people of the United States, who can make
such disposition of them as seems to them good.
The conclusion, then, that the General government holds from the
States united, not from the States severally, is not invalidated
by the fact that its constitution was completed only by the
ratification of the States in their individual capacity. The
ratification was made necessary by the will of the people in
convention assembled; but the convention was competent to
complete it and put it in force without that ratification, had it
so willed. The general practice under the American system is for
the convention to submit the constitution it has agreed on to the
people, to be accepted or rejected by a plebiscitum; but such
submission, though it may be wise and prudent, is not necessary.
The convention is held to be the convention of the people, and to
be clothed with the full authority of the sovereign people, and
it is in this that it differs from the congress or the
legislature. It is not a congress of delegates or ministers who
are obliged to act under instructions, to report their acts to
their respective sovereigns for approval or rejection; it is
itself sovereign, and may do whatever the people themselves can
do. There is no necessity for it to appeal to a plebiscitum to
complete its acts. That the convention, on the score of
prudence, is wise in doing so, nobody questions; but the
convention is always competent, if it chooses, to ordain the
constitution without appeal. The power competent to ordain the
constitution is always competent to change, modify, or amend it.
That amendments to the constitution of the government can be
adopted only by being proposed by a convention of all the States
in the Union, or by being proposed, by a two-thirds vote of both
houses of Congress, and ratified by three-fourths of the States,
is simply a conventional ordinance, which the convention can
change at its pleasure. It proves nothing as it stands but the
will of the convention.
The term ratification itself, because the term commonly used in
reference to treaties between sovereign powers, has been seized
on, since sometimes used by the convention, to prove that the
constitution emanates from the States severally, and is a treaty
or compact between sovereign states, not an organic or
fundamental law ordained by a single sovereign will; but this
argument is inadmissible, because, as we have just seen, the
convention is competent to ordain the constitution without
submitting it for ratification, and because the convention uses
sometimes the word adopt instead of the word ratify. That the
framers of the constitution held it to be a treaty, compact, or
agreement among sovereigns, there is no doubt, for they so held
in regard to all constitution of government; and there is just as
little doubt that they intended to constitute, and firmly
believed that they were constituting a real government.
Mr. Madison's authority on this point is conclusive. They
unquestionably regarded the States, prior to the ratification of
the constitution they proposed, as severally sovereign, as they
were declared to be by the old Articles of Confederation, but
they also believed that all individuals are sovereign prior to
the formation of civil society. Yet very few, if any, of them
believed that they remained sovereign after the adoption of the
constitution; and we may attribute to their belief in the
conventional origin of all government,--the almost universal
belief of the time among political philosophers,--the little
account which they made of the historical facts that prove that
the people of the United States were always one people, and that
the States never existed as severally sovereign states.
The political philosophers of the present day do not generally
accept the theory held by our fathers, and it has been shown in
these pages to be unsound and incompatible with the essential
nature of government. The statesmen of the eighteenth century
believed that the state is derived from the people individually,
and held that sovereignty is created by the people in convention.
The rights and powers of the state, they held, were made up of
the rights held by individuals under the law of nature, and which
the individuals surrendered to civil society on its formation.
So they supposed that independent sovereign states might meet in
convention, mutually agree to surrender a portion of their
rights, organize their surrendered rights into a real government,
and leave the convention shorn, at least, of a portion of their
sovereignty. This doctrine crops out everywhere in the writings
of the elder Adams, and is set forth with rare ability by
Mr. Webster, in his great speech in the Senate against the State
sovereignty doctrine of General Hayne and Mr. Calhoun, which won
for him the honorable title of Expounder of the Constitution--and
expound it he, no doubt, did in the sense of its framers. He
boldly concedes that prior to the adoption of the constitution,
the people of the United States were severally sovereign states,
but by the constitution they were made one sovereign political
community or people, and that the States, though retaining
certain rights, have merged their several sovereignty in the
Union.
The subtle mind of Mr. Calhoun, who did not hold that a state can
originate in compact, proved to Mr. Webster that his theory could
not stand; that, if the States went into the convention sovereign
States, they came out of it sovereign States; and that the
constitution they formed could from the nature of the case be
only a treaty, compact, or agreement between sovereigns. It
could create an agency, but not a government. The sovereign
States could only delegate the exercise of their sovereign
powers, not the sovereign powers themselves. The States could
agree to exercise certain specific powers of sovereignty only in
common, but the force and vitality of the agreement depended on
the States, parties to the agreement retaining respectively their
sovereignty. Hence, he maintained that sovereignty, after as
before the convention, vested in the States severally. Hence
State sovereignty, and hence his doctrine that in all cases that
cannot come properly before the Supreme Court of the United
States for decision, each State is free to decide for itself, on
which he based the right of nullification, or the State veto of
acts of Congress whose constitutionality the State denies.
Mr. Calhoun was himself no secessionist, but he laid down the
premises from which secession is the logical deduction; and large
numbers of young men, among the most open, the most generous, and
the most patriotic in the country, adopted his premises, without
being aware of this fact any more than he himself was, and who
have been behind none in their loyalty to the Union, and in their
sacrifices to sustain it, in the late rebellion.
The formidable rebellion which is now happily suppressed, and
which attempted to justify itself by the doctrine of State
sovereignty, has thrown, in many minds, new light on the subject,
and led them to re-examine the historical facts in the case from
a different point of view, to see if Mr. Calhoun's theory is not
as unfounded as be had proved Mr. Webster's theory to be. The
facts in the case really sustain neither, and both failed to see
it: Mr. Calhoun because be had purposes to accomplish which
demanded State sovereignty, and Mr. Webster because he examined
them in the distorting medium of the theory or understanding of
the statesmen of the eighteenth century. The civil war has
vindicated the Union, and defeated the armed forces of the State
sovereignty men; but it has not refuted their doctrine, and as
far as it has had any effect, it has strengthened the tendency to
consolidation or centralism.
But the philosophy, the theory of government, the understanding
of the framers of the constitution, must be considered, if the
expression will be allowed, as obiter dicta, and be judged on
their merits. What binds is the thing done, not the theory on
which it was done, or on which the actors explained their work
either to themselves or to others. Their political philosophy,
or their political theory, may sometimes affect the phraseology
they adopt, but forms no rule for interpreting their work. Their
work was inspired by and accords with the historical facts in the
case, and is authorized and explained by them. The American
people were not made one people by the written constitution, as
Mr. Jefferson, Mr. Madison, Mr. Webster, and so many others
supposed, but were made so by the unwritten constitution, born
with and inherent in them.
CHAPTER XI.
THE CONSTITUTION--CONTINUED.
Providence, or God operating through historical facts,
constituted the American people one political or sovereign
people, existing and acting in particular communities,
organizations, called states. This one people organized as
states, meet in convention, frame and ordain the constitution of
government, or institute a general government in place of the
Continental Congress; and the same people, in their respective
State organizations, meet in convention in each State, and frame
and ordain a particular government for the State individually,
which, in union with the General government, constitutes the
complete and supreme government within the States, as the General
government, in union with all the particular governments,
constitutes the complete and supreme government of the nation or
whole country. This is clearly the view taken by Mr. Madison in
his letter to Mr. Everett, when freed from his theory of the
origin of government in compact.
The constitution of the people as one people, and the
distinction at the same time of this one people into particular
States, precedes the convention, and is the unwritten
constitution, the Providential constitution, of the American
people or civil society, as distinguished from the constitution
of the government, which, whether general or particular, is the
ordination of civil society itself. The unwritten constitution
is the creation or constitution of the sovereign, and the
sovereign providentially constituted constitutes in turn the
government, which is not sovereign, but is clothed with just so
much and just so little authority as the sovereign wills or
ordains.
The sovereign in the republican order is the organic people, or
State, and is with us the United States, for with us the organic
people exist only as organized into States united, which in their
union form one compact and indissoluble whole. That is to say,
the organic American people do not exist as a consolidated people
or state; they exist only as organized into distinct but
inseparable States. Each State is a living member of the one
body, and derives its life from its union with the body, so that
the American state is one body with many members; and the
members, instead of being simply individuals, are States, or
individuals organized into States. The body consists of many
members, and is one body, because the members are all members of
it, and members one of another. It does not exist as separate
or distinct from the members, but exists in their solidarity or
membership one of another. There is no sovereign people or
existence of the United States distinguishable from the people
or existence of the particular States united. The people of the
United States, the state called the United States, are the
people of the particular States united. The solidarity of the
members constitutes the unity of the body. The difference
between this view and Mr. Madison's is, that while his view
supposes the solidarity to be conventional, originating and
existing in compact, or agreement, this supposes it to be real,
living, and prior to the convention, as much the work of
Providence as the existence in the human body of the living
solidarity of its members. One law, one life, circulates
through all the members, constituting them a living organism,
binding them in living union, all to each and each to all.
Such is the sovereign people, and so far the original unwritten
constitution. The sovereign, in order to live and act, must
have an organ through which be expresses his will. This organ
under the American system, is primarily the Convention. The
convention is the supreme political body, the concrete sovereign
authority, and exercises practically the whole sovereign power
of the people. The convention persists always, although not in
permanent session. It can at any time be convened by the
ordinary authority of the government, or, in its failure, by a
plebiscitum.
Next follows the Government created and constituted by the
convention. The government is constituted in such manner, and
has such and only such powers, as the convention ordains. The
government has, in the strict sense, no political authority
under the American system, which separates the government from
the convention. All political questions proper, such as the
elective franchise, eligibility, the constitution of the several
departments of government, as the legislative, the judicial, and
the executive, changing, altering, or amending the constitution
of government, enlarging, or contracting its powers, in a word,
all those questions that arise on which it is necessary to take
the immediate orders of the sovereign, belong not to the
government, but to the convention; and where the will of the
sovereign is not sufficiently expressed in the constitution, a
new appeal to the convention is necessary, and may always be had.
The constitution of Great Britain makes no distinction between
the convention and the government. Theoretically the
constitution of Great Britain is feudal, and there is, properly
speaking, no British state; there are only the estates, king,
lords, and commons, and these three estates constitute the
Parliament, which is held to be omnipotent; that is, has the
plenitude of political sovereignty. The British Parliament,
composed of the three estates, possesses in itself all the
powers of the convention in the American constitution, and is at
once the convention and the government. The imperial
constitution of France recognizes no convention, but clothes the
senate with certain political functions, which, in some
respects, subjects theoretically the sovereign to his creature.
The emperor confessedly holds his power by the grace of God and
the will of the nation, which is a clear acknowledgment that the
sovereignty vests in the French people as the French state; but
the imperial constitution, which is the constitution of the
government, not of the state, studies, while acknowledging the
sovereignty of the people, to render it nugatory, by transferring
it, under various subtle disguises, to the government, and
practically to the emperor as chief of the government. The
senate, the council of state, the legislative body, and the
emperor, are all creatures of the French state, and have properly
no political functions, and to give them such functions is to
place the sovereign under his own subjects! The real aim of the
imperial constitution is to secure despotic power under the
guise of republicanism. It leaves and is intended to leave the
nation no way of practically asserting its sovereignty but by
either a revolution or a plebiscitum, and a plebiscitum is
permissible only where there is no regular government.
The British constitution is consistent with itself, but imposes
no restriction on the power of the government. The French
imperial constitution is illogical, inconsistent with itself as
well as with the free action of the nation. The American
constitution has all the advantages of both, and the
disadvantages of neither. The convention is not the government
like the British Parliament, nor a creature of the state like
the French senate, but the sovereign state itself, in a
practical form. By means of the convention the government is
restricted to its delegated powers, and these, if found in
practice either too great or too small, can be enlarged or
contracted in a regular, orderly way, without resorting to a
revolution or to a plebiscitum. Whatever political grievances
there may be, there is always present the sovereign convention
competent to redress them. The efficiency of power is thus
secured without danger to liberty, and freedom without danger to
power. The recognition of the convention, the real political
sovereign of the country and its separation from and
independence of the ordinary government, is one of the most
striking features of the American constitution.
The next thing to be noted, after the convention, is the
constitution by the convention of the government. This
constitution, as Mr. Madison well observes, divides the powers
conceded by the convention to government between the General
Government and the particular State governments. Strictly
speaking, the government is one, and its powers only are divided
and exercised by two sets of agents or ministries. This
division of the powers of government could never have been
established by the convention if the American people had not
been providentially constituted one people, existing and acting
through particular State organizations. Here the unwritten
constitution, or the constitution written in the people
themselves, rendered practicable and dictated the written
constitution, or constitution ordained by the convention and
engrossed on parchment. It only expresses in the government the
fact which pre-existed in the national organization and life.
This division of the powers of government is peculiar to the
United States, and is an effective safeguard against both feudal
disintegration and Roman centralism. Misled by their prejudices
and peculiar interests, a portion of the people of the United
States, pleading in their justification the theory of State
sovereignty, attempted disintegration, secession, and national
independence separate from that of the United States, but the
central force of the constitution was too strong for them to
succeed. The unity of the nation was too strong to be
effectually broken. No doubt the reaction against secession and
disintegration will strengthen the tendency to centralism, but
centralism can succeed no better than disintegration has
succeeded because the General government has no subsistentia, no
suppositum, to borrow a theological term, outside or independent
of the States. The particular governments are stronger, if
there be any difference, to protect the States against
centralism than the General government is to protect the Union
against disintegration; and after swinging for a time too far
toward one extreme and then too far toward the other, the public
mind will recover its equilibrium, and the government move on in
its constitutional path.
Republican Rome attempted to guard against excessive centralism
by the tribunitial veto, or by the organization of a negative or
obstructive power. Mr. Calhoun thought this admirable, and
wished to effect the same end here, where it is secured by
other, more effective, and less objectionable means, by a State
veto on the acts of Congress, by a dual executive, and by
substituting concurrent for numerical majorities. Imperial Rome
gradually swept away the tribunitial veto, concentrated all
power in the hands of the emperor, became completely
centralized, and fell. The British constitution seeks the same
end by substituting estates for the state, and establishing a
mixed government, in which monarchy, aristocracy, and democracy
temper, check, or balance each other; but practically the
commons estate has become supreme, and the nobility govern not
in the house of lords, and can really influence public affairs
only through the house of commons. The principle of the British
constitution is not the division of the powers of government,
but the antagonism of estates, or rather of interests, trusting
to the obstructive influence of that antagonism to preserve the
government from pure centralism. Hence the study of the British
statesman is to manage diverse and antagonistic parties and
interests so as to gain the ability to act, which he can do only
by intrigue, cajolery, bribery in one form or another, and
corruption of every sort. The British government cannot be
carried on by fair, honest, and honorable means, any more than
could the Roman under the antagonism created by the tribunitial
veto. The French tried the English system of organized
antagonism in 1789, as a cure for the centralism introduced by
Richelieu and Louis XIV., and again under the Restoration and
Louis Philippe, and called it the system of constitutional
guarantees; but they could never manage it, and they have taken
refuge in unmitigated centralism under Napoleon III., who,
however well disposed, finds no means in the constitution of the
French nation of tempering it. The English system, called the
constitutional, and sometimes the parliamentary system, will not
work in France, and indeed works really well nowhere.
The American system, sometimes called the Federal system, is not
founded on antagonism of classes, estates, or interests, and is
in no sense a system of checks and balances. It needs and
tolerates no obstructive forces. It does not pit section
against section, the States severally against the General
government, nor the General government against the State
governments, and nothing is more hurtful than the attempt to
explain it and work it on the principles of British
constitutionalism. The convention created no antagonistic
powers; it simply divided the powers of government, and gave
neither to the General government nor to the State governments
all the powers of government, nor in any instance did it give to
the two governments jurisdiction in the same matters. Hence each
has its own sphere, in which it can move on without colliding
with that of the other. Each is independent and complete in
relation to its own work, incomplete and dependent on the other
for the complete work of government.
The division of power is not between a NATIONAL government and
State governments, but between a GENERAL government and
particular governments. The General government, inasmuch as it
extends to matters common to all the States, is usually called
the Government of the United States, and sometimes the Federal
government, to distinguish it from the particular or State
governments, but without strict propriety; for the government of
the United States, or the Federal government, means, in
strictness, both the General government and the particular
Governments, since neither is in itself the complete government
of the country. The General government has authority within
each of the States, and each of the State governments has
authority in the Union. The line between the Union and the
States severally, is not precisely the line between the General
government and the particular governments. As, for instance,
the General government lays direct taxes on the people of the
States, and collects internal revenue within them; and the
citizens of a particular State, and none others, are electors of
President and Vice-President of the United States, and
representatives in the lower house of Congress, while senators
in Congress are elected by the State legislatures themselves.
The line that distinguishes the two governments is that which
distinguishes the general relations and interests from the
particular relations and interests of the people of the United
States. These general relations and interests are placed under
the General government, which, because its jurisdiction is
coextensive with the Union, is called the Government of the
United States; the particular relations and interests are placed
under particular governments, which, because their jurisdiction
is only coextensive, with the States respectively, are called
State governments. The General government governs supremely all
the people of the United States and Territories belonging to the
Union, in all their general relations and interests, or
relations and interests common alike to them all; the particular
or State government governs supremely the people of a particular
State, as Massachusetts, New York, or New Jersey, in all that
pertains to their particular or private rights, relations, and
interests. The powers of each are equally sovereign, and
neither are derived from the other. The State governments are
not subordinate to the General government, nor the General
government to the State governments. They are co-ordinate
governments, each standing on the same level, and deriving its
powers from the same sovereign authority. In their respective
spheres neither yields to the other. In relation to the matters
within its jurisdiction, each government is independent and
supreme in regard of the other, and subject only to the
convention.
The powers of the General government are the power--
To lay and collect taxes, duties, imposts, and excises, to pay
the debts and provide for the general welfare of the United
States; to borrow money on the credit of the United States; to
regulate commerce with foreign nations, among the several
States, and with the Indian tribes; to establish a uniform rule
of naturalization, and uniform laws on the subject of
bankruptcies throughout the United States; to coin money and
regulate the value thereof, and fix the standard of weights and
measures; to provide for the punishment of counterfeiting the
securities and current coin of the United States; to establish
post-offices and post-roads; to promote the progress of science
and of the useful arts, by securing for limited times to authors
and inventors the exclusive right to their respective writings
and discoveries; to define and punish piracies and felonies
committed on the high seas, and offences against the law of
nations; to declare war, grant letters of marque and reprisal,
and make rules concerning captures on land and water; to raise
and support armies; to provide and maintain a navy; to make
rules for the government of the land and naval forces; to
provide for calling forth the militia to execute the laws of the
Union, suppress insurrections, and repel invasions; to provide
for organizing, arming, and disciplining the militia, and of
governing such part of them as may be employed in the service of
the United States; to exercise exclusive legislation in all
cases whatsoever over such district, not exceeding ten miles
square, as may by cession of particular States and the
acceptance of Congress, become the seat of the government of the
United States, and to exercise a like authority over all places
purchased by the consent of the legislature of the State in
which the same shall be, for the erection of forts, magazines,
arsenals, dock-yards, and other needful buildings; and to make
all laws which shall be necessary and proper for carrying into
execution the foregoing powers, and all other powers vested by
this constitution in the government of the United States, or in
any department or office thereof.
In addition to these, the General government is clothed with the
treaty-making power, and the whole charge of the foreign
relations of the country; with power to admit new States into
the Union; to dispose of and make all needful rules and
regulations concerning the territory and all other property
belonging to the United States; to declare, with certain
restrictions, the punishment of treason, the constitution itself
defining what is treason against the United States; and to
propose, or to call, on the application of the legislatures of
two-thirds of all the states, a convention for proposing
amendments to this constitution; and is vested with supreme
judicial power, original or appellate, in all cases of law and
equity arising under this constitution, the laws of the United
States, and treaties made or to be made under their authority,
in all cases affecting ambassadors, other public ministers, and
consuls, in all cases of admiralty and maritime jurisdiction, in
all controversies to which the United States shall be a party,
all controversies between two or more States, between a State
and citizens of another State, between citizens of different
States, between citizens of the same State claiming lands under
grants of different States, and between a State or the citizens
thereof and foreign states, citizens, or subjects.
These, with what is incidental to them, and what is necessary
and proper to carry them into effect, are all the positive
powers with which the convention vests the General government,
or government of the United States, as distinguished from the
governments of the particular States; and these, with the
exception of what relates to the district in which it has its
seat, and places of forts, magazines, &c., are of a general
nature, and restricted to the common relations and interests of
the people, or at least to interests and relations which extend
beyond the limits of a particular State. They are all powers
that regard matters which extend beyond not only the individual
citizen, but the individual State, and affect alike the
relations and interests of all the States, or matters which
cannot be disposed of by a State government without the exercise
of extra-territorial jurisdiction. They give the government no
jurisdiction of questions which affect individuals or citizens
only in their private and domestic relations which lie wholly
within a particular State. The General government does not
legislate concerning private rights, whether of persons or
things, the tenure of real estate, marriage, dower, inheritance,
wills, the transferrence or transmission of property, real or
personal; it can charter no private corporations, out of the
District of Columbia, for business, literary, scientific, or
eleemosynary purposes, establish no schools, found no colleges
or universities, and promote science and the useful arts only by
securing to authors and inventors for a time the exclusive right
to their writings and discoveries. The United States Bank was
manifestly unconstitutional, as probably are the present
so-called national banks. The United States Bank was a private
or particular corporation, and the present national banks are
only corporations of the same sort, though organized under a
general law. The pretence that they are established to supply a
national currency, does not save their constitutionality, for
the convention has not given the General government the power
nor imposed on it the duty of furnishing a national currency.
To coin money, and regulate the value thereof, is something very
different from authorizing private companies to issue bank
notes, on the basis of the public stocks held as private
property, or even on what is called a specie basis. To claim
the power under the general welfare clause would be a simple
mockery of good sense. It is no more for the general welfare
than any other successful private business. The private welfare
of each is, no doubt, for the welfare of all, but not therefore
is it the "general welfare," for what is private, particular in
its nature, is not and cannot be general. To understand by
general welfare that which is for the individual welfare of all
or the greater number, would be to claim for the General
government all the powers of government, and to deny that very
division of powers which is the crowning merit of the American
system. The general welfare, by the very force of the words
themselves, means the common as distinguished from the private
or individual welfare. The system of national banks may or may
not be a good and desirable system, but it is difficult to
understand the constitutional power of the General government to
establish it.
On the ground that its powers are general, not particular, the
General government has no power to lay a protective tariff. It
can lay a tariff for revenue, not for protection of home
manufactures or home industry; for the interests fostered, even
though indirectly advantageous to the whole people, are in their
nature private or particular, not general interests, and chiefly
interests of private corporations and capitalists. Their
incidental or even consequential effects do not change their
direct and essential nature. So with domestic slavery. Slavery
comes under the head of private rights, whether regarded on the
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