Chapter 70

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

Looking back for a moment at the ground over which we have gone, I think it may be fairly asserted that the following propositions have been clearly and fully established:

1. That the States of which the American Union was formed, from the moment when they emerged from their colonial or provincial condition, became severally sovereign, free, and independent States--not one State, or nation.

2. That the union formed under the Articles of Confederation was a compact between the States, in which these attributes of "sovereignty, freedom, and independence," were expressly asserted and guaranteed.

3. That, in forming the "more perfect union" of the Constitution, afterward adopted, the same contracting powers formed an _amended compact_, without any surrender of these attributes of sovereignty, freedom, and independence, either expressed or implied: on the contrary, that, by the tenth amendment to the Constitution, limiting the power of the Government to its express grants, they distinctly guarded against the presumption of a surrender of anything by implication.

4. That political sovereignty resides, neither in individual citizens, nor in unorganized masses, nor in fractional subdivisions of a community, but in the people of an organized political body.

5. That no "republican form of government," in the sense in which that expression is used in the Constitution, and was generally understood by the founders of the Union--whether it be the government of a State or of a confederation of States--is possessed of any sovereignty whatever, but merely exercises certain powers delegated by the sovereign authority of the people, and subject to recall and reassumption by the same authority that conferred them.

6. That the "people" who organized the first confederation, the people who dissolved it, the people who ordained and established the Constitution which succeeded it, the only people, in fine, known or referred to in the phraseology of that period--whether the term was used collectively or distributively--were the people of the respective States, each acting separately and with absolute independence of the others.

7. That, in forming and adopting the Constitution, the States, or the people of the States--terms which, when used with reference to acts performed in a sovereign capacity, are precisely equivalent to each other--formed a new _Government_, but no new _people_; and that, consequently, no new sovereignty was created--for sovereignty in an American republic can belong only to a people, never to a government--and that the Federal Government is entitled to exercise only the powers delegated to it by the people of the respective States.

8. That the term "people," in the preamble to the Constitution and in the tenth amendment, is used distributively; that the only "people of the United States" known to the Constitution are the people of each State in the Union; that no such political community or corporate unit as one people of the United States then existed, has ever been organized, or yet exists; and that no political action by the people of the United States in the aggregate has ever taken place, or ever can take place, under the Constitution.

The fictitious idea of _one_ people of the United States, contradicted in the last paragraph, has been so impressed upon the popular mind by false teaching, by careless and vicious phraseology, and by the ever-present spectacle of a great Government, with its army and navy, its custom-houses and post-offices, its multitude of office-holders, and the splendid prizes which it offers to political ambition, that the tearing away of these illusions and presentation of the original fabric, which they have overgrown and hidden from view, have no doubt been unwelcome, distasteful, and even repellent to some of my readers. The artificial splendor which makes the deception attractive is even employed as an argument to prove its reality.

The glitter of the powers delegated to the agent serves to obscure the perception of the sovereign power of the principal by whom they are conferred, as, by the unpracticed eye, the showy costume and conspicuous functions of the drum-major are mistaken for emblems of chieftaincy--while the misuse or ambiguous use of the term "Union" and its congeners contributes to increase the confusion.

So much the more need for insisting upon the elementary truths which have been obscured by these specious sophistries. The reader really desirous of ascertaining truth is, therefore, again cautioned against confounding two ideas so essentially distinct as that of _government_, which is derivative, dependent, and subordinate, with that of the _people_, as an organized political community, which is sovereign, without any other than self-imposed limitations, and such as proceed from the general principles of the personal rights of man.

It has been said, in a foregoing chapter, that the authors of the Constitution could scarcely have anticipated the idea of such a community as the people of the United States in one mass. Perhaps this expression needs some little qualification, for there is rarely a fallacy, however stupendous, that is wholly original. A careful examination of the records of the Convention of 1787 exhibits one or perhaps two instances of such a suggestion--both by the same person--and the result in each case is strikingly significant.

The original proposition made concerning the office of President of the United States contemplated his election by the Congress, or, as it was termed by the proposer, "the national Legislature." On the 17th of July, this proposition being under consideration, Mr. Gouverneur Morris moved that the words "national Legislature" be stricken out, and "citizens of the United States" inserted. The proposition was supported by Mr. James Wilson--both of these gentlemen being delegates from Pennsylvania, and both among the most earnest advocates of centralism in the Convention.

Now, it is not at all certain that Mr. Morris had in view an election by the citizens of the United States "in the aggregate," voting as _one people_. The language of his proposition is entirely consistent with the idea of as election by the citizens of each State, voting separately and independently, though it is ambiguous, and may admit of the other construction. But this is immaterial. The proposition was submitted to a vote, and received the approval of only _one State_--Pennsylvania, of which Mr. Morris and Mr. Wilson were both representatives. _Nine_ States voted against it.[80]

Six days afterward (July 23d), in a discussion of the proposed ratification of the Constitution by Conventions of the people of each State, Mr. Gouverneur Morris--as we learn from Mr. Madison--"moved that the reference of the plan [i.e., of the proposed Constitution] be made to one General Convention, chosen and authorized by the people, to consider, amend, and establish the same."[81]

Here the issue seems to have been more distinctly made between the two ideas of people of the States and one people in the aggregate. The fate of the latter is briefly recorded in the two words, "not seconded." Mr. Morris was a man of distinguished ability, great personal influence, and undoubted patriotism, but, out of all that assemblage--comprising, as it did, such admitted friends of centralism as Hamilton, King, Wilson, Randolph, Pinckney, and others--there was not one to sustain him in the proposition to incorporate into the Constitution that theory which now predominates, the theory on which was waged the late bloody war, which was called a "war for the Union." It failed for want of a second, and does not even appear in the official journal of the Convention. The very fact that such a suggestion was made would be unknown to us but for the record kept by Mr. Madison.

The extracts which have been given, in treating of special branches of the subject, from the writings and speeches of the framers of the Constitution and other statesmen of that period, afford ample proof of their entire and almost unanimous accord with the principles which have been established on the authority of the Constitution itself, the acts of ratification by the several States, and other attestations of the highest authority and validity. I am well aware that isolated expressions may be found in the reports of debates on the General and State Conventions and other public bodies, indicating the existence of individual opinions seemingly inconsistent with these principles; that loose and confused ideas were sometimes expressed with regard to sovereignty, the relations between governments and people, and kindred subjects; and that, while the plan of the Constitution was under discussion, and before it was definitely reduced to its present shape, there were earnest advocates in the Convention of a more consolidated system, with a stronger central government. But these expressions of individual opinion only prove the existence of a small minority of dissentients from the principles generally entertained, and which finally prevailed in the formation of the Constitution. None of these ever avowed such extravagances of doctrine as are promulgated in this generation. No statesman of that day would have ventured to risk his reputation by construing an obligation to support the Constitution as an obligation to adhere to the Federal Government--a construction which would have insured the sweeping away of any plan of union embodying it, by a tempest of popular indignation from every quarter of the country. None of them suggested such an idea as that of the amalgamation of the people of the States into one consolidated mass--unless it was suggested by Mr. Gouverneur Morris in the proposition above referred to, in which he stood alone among the delegates of twelve sovereign States assembled in convention.

As to the features of centralism, or nationalism, which they did advocate, all the ability of this little minority of really gifted men failed to secure the incorporation of any one of them into the Constitution, or to obtain their recognition by any of the ratifying States. On the contrary, the very men who had been the leading advocates of such theories, on failing to secure their adoption, loyally accepted the result, and became the ablest and most efficient supporters of the principles which had prevailed. Thus, Mr. Hamilton, who had favored the plan of a President and Senate, both elected to hold office for life (or during good behavior), with a veto power in Congress on the action of the State Legislatures, became, through the "Federalist," in conjunction with his associates, Mr. Madison and Mr. Jay, the most distinguished expounder and advocate of the Constitution, as then proposed and afterward ratified, with all its Federal and State-rights features. In the ninth number of that remarkable series of political essays, he quotes, adopts, and applies to the then proposed Constitution, Montesquieu's description of a "CONFEDERATE REPUBLIC," a term which he (Hamilton) repeatedly employs.

In the eighty-first number of the same series, replying to apprehensions expressed by some that a State might be brought before the Federal courts to answer as defendant in suits instituted against her, he repels the idea in these plain and conclusive terms. The italics are my own:

"It is inherent in the nature of _sovereignty_ not to be amenable to the suit of any individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the _attributes of sovereignty_, is now enjoyed by the government of _every State in the Union_. Unless, therefore, there is _a surrender of this immunity_ in the plan of the Convention, _it will remain with the States_, and the danger intimated must be merely ideal.... The contracts between _a nation_ and individuals are only binding on the conscience of _the sovereign_, and have no pretensions to a compulsive force. They confer no right of action, independent of _the sovereign will_. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident that it could not be done without _waging war_ against the contracting State; and to ascribe to the Federal courts, by mere implication, and in destruction of a preëxisting right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarranted."[82]

This extract is very significant, clearly showing that Mr. Hamilton assumed as undisputed propositions, in the first place, that the State was _the_ "SOVEREIGN"; secondly, that this sovereignty could not be alienated, unless by express surrender; thirdly, that no such surrender had been made; and, fourthly, that the idea of applying coercion to a State, even to enforce the fulfillment of a duty, would be equivalent to waging war against a State--it was "altogether forced and unwarrantable."

In a subsequent number, Mr. Hamilton, replying to the objection that the Constitution contains no bill or declaration of rights, argues that it was entirely unnecessary, because in reality the people--that is, of course, the people, respectively, of the several States, who were the only people known to the Constitution or to the country--had surrendered nothing of their inherent sovereignty, but retained it unimpaired. He says: "Here, in strictness, the people _surrender nothing_; and, as they _retain everything_, they have no need of particular reservations." And again: "I go further, and affirm that bills of rights, in the sense and to the extent they are contended for, are not only unnecessary in the proposed Constitution, but would be absolutely dangerous. They would contain various exceptions to _powers not granted_, and on this very account would afford a colorable pretext to claim more than were granted. For why declare that things shall not be done, which there is no power to do?"[83] Could language be more clear or more complete in vindication of the principles laid down in this work? Mr. Hamilton declares, in effect, that the grants to the Federal Government in the Constitution are not surrenders, but delegations of power by the people of the States; that sovereignty remains intact where it was before; and that the delegations of power were strictly limited to those expressly granted--in this, merely anticipating the tenth amendment, afterward adopted.

Finally, in the concluding article of the "Federalist," he bears emphatic testimony to the same principles, in the remark that "every Constitution for the United States must inevitably consist of a great variety of particulars, in which _thirteen independent States_ are to be accommodated in their interests or opinions of interest.... Hence the necessity of molding and arranging all the particulars, which are to compose the whole, in such a manner as to satisfy _all the parties_ to the compact."[84] There is no intimation here, or anywhere else, of the existence of any such idea as that of the aggregated people of one great consolidated state. It is an incidental enunciation of the same truth soon afterward asserted by Madison in the Virginia Convention--that the people who ordained and established the Constitution were "not the people as composing one great body, but the people as composing thirteen sovereignties".

Mr. Madison, in the Philadelphia Convention, had at first held views of the sort of government which it was desirable to organize, similar to those of Mr. Hamilton, though more moderate in extent. He, too, however, cordially conformed to the modifications in them made by his colleagues, and was no less zealous and eminent in defending and expounding the Constitution as finally adopted. His interpretation of its fundamental principles is so fully shown in the extracts which have already been given from his contributions to the "Federalist" and speeches in the Virginia Convention, that it would be superfluous to make any additional citation from them.

The evidence of Hamilton and Madison--two of the most eminent of the authors of the Constitution, and the two preeminent contemporary expounders of its meaning--is the most valuable that could be offered for its interpretation. That of all the other statesmen of the period only tends to confirm the same conclusions. The illustrious Washington, who presided over the Philadelphia Convention, in his correspondence, repeatedly refers to the proposed Union as a "Confederacy" of States, or a "confederated Government," and to the several States as "acceding," or signifying their "accession," to it, in ratifying the Constitution. He refers to the Constitution itself as "a compact or treaty," and classifies it among compacts or treaties between "men, bodies of men, or countries." Writing to Count Rochambeau, on January 8, 1788, he says that the proposed Constitution "is to be submitted to conventions chosen by _the people in the several States_, and by them approved or rejected"--showing what _he_ understood by "the people of the United States," who were to ordain and establish it. These same people--that is, "the people of the several States"--he says, in a letter to Lafayette, April 28, 1788, "retain everything they do not, by express terms, give up." In a letter written to Benjamin Lincoln, October 26, 1788, he refers to the expectation that North Carolina will accede to the Union, and adds, "Whoever shall be found to enjoy the confidence of _the States_ so far as to be elected Vice-President," etc.--showing that in the "confederated Government," as he termed it, the States were still to act independently, even in the selection of officers of the General Government. He wrote to General Knox, June 17, 1788, "I can not but hope that the States which may be disposed to make a secession will think often and seriously on the consequences." June 28, 1788, he wrote to General Pinckney that New Hampshire "had acceded to the new Confederacy," and, in reference to North Carolina, "I should be astonished if that State should withdraw from the Union."

I shall add but two other citations. They are from speeches of John Marshall, afterward the most distinguished Chief Justice of the United States--who has certainly never been regarded as holding high views of State rights--in the Virginia Convention of 1788. In the first case, he was speaking of the power of the States over the militia, and is thus reported:

"The State governments did not derive their powers from the General Government; but each government derived its powers from the people, and each was to act according to the powers given it. Would any gentleman deny this?... Could any man say that this power was not retained by the States, as they had not given it away? For (says he) does not a power remain till it is given away? The State Legislatures had power to command and govern their militia before, and have it still, undeniably, unless there be something in this Constitution that takes it away....

"He concluded by observing that the power of governing the militia was not vested in the States by implication, because, being possessed of it antecedently to the adoption of the Government, and not being divested of it by any grant or restriction in the Constitution, they must necessarily be as fully possessed of it as ever they had been, and it could not be said that the States derived any powers from that system, but retained them, though not acknowledged in any part of it."[85]

In the other case, the special subject was the power of the Federal judiciary. Mr. Marshall said, with regard to this: "I hope that no gentleman will think that a State can be called at the bar of the Federal court. Is there no such case at present? Are there not many cases, in which the Legislature of Virginia is a party, and yet the State is not sued? Is it rational to suppose that the sovereign power shall be dragged before a court?"[86]

Authorities to the same effect might be multiplied indefinitely by quotation from nearly all the most eminent statesmen and patriots of that brilliant period. My limits, however, permit me only to refer those in quest of more exhaustive information to the original records, or to the "Republic of Republics," in which will be found a most valuable collection and condensation of the teaching of the fathers on the subject. There was no dissent, at that period, from the interpretation of the Constitution which I have set forth, as given by its authors, except in the objections made by its adversaries. Those objections were refuted and silenced, until revived, long afterward, and presented as the true interpretation, by the school of which Judge Story was the most effective founder.

At an earlier period--but when he had already served for several years in Congress, and had attained the full maturity of his powers--Mr. Webster held the views which were presented in a memorial to Congress of citizens of Boston, December 15, 1819, relative to the admission of Missouri, drawn up and signed by a committee of which he was chairman, and which also included among its members Mr. Josiah Quincy. He speaks of the States as enjoying "_the exclusive possession of sovereignty_" over their own territory, calls the United States "the American Confederacy," and says, "The only _parties to the Constitution_, contemplated by it originally, were the _thirteen confederated States_." And again: "As between the original States, the representation rests on _compact and plighted faith_; and your memorialists have no wish that that compact should be disturbed, or that plighted faith in the slightest degree violated."

It is satisfactory to know that in the closing year of his life, when looking retrospectively, with judgment undisturbed by any extraneous influence, he uttered views of the Government which must stand the test of severest scrutiny and defy the storms of agitation, for they are founded on the rock of truth. In letters written and addresses delivered during the Administration of Mr. Fillmore, he repeatedly applies to the Constitution the term "compact," which, in 1833, he had so vehemently repudiated. In his speech at Capon Springs, Virginia, in 1851, he says:

"If the South were to violate any part of the Constitution intentionally and systematically, and persist in so doing year after year, and no remedy could be had, would the North be any longer bound by the rest of it? And if the North were, deliberately, habitually, and of fixed purpose, to disregard one part of it, would the South be bound any longer to observe its other obligations?...

"How absurd it is to suppose that, when different parties enter into a compact for certain purposes, either can disregard any one provision, and expect, nevertheless, the other to observe the rest!...

"I have not hesitated to say, and I repeat, that, if the Northern States refuse, willfully and deliberately, to carry into effect that part of the Constitution which respects the restoration of fugitive slaves, and Congress provide no remedy, the South would no longer be bound to observe the compact. A bargain can not be broken on one side, and still bind the other side."[87]

The principles which have been set forth in the foregoing chapters, although they had come to be considered as peculiarly Southern, were not sectional in their origin. In the beginning and earlier years of our history they were cherished as faithfully and guarded as jealously in Massachusetts and New Hampshire as in Virginia or South Carolina. It was in these principles that I was nurtured. I have frankly proclaimed them during my whole life, always contending in the Senate of the United States against what I believed to be the mistaken construction of the Constitution taught by Mr. Webster and his adherents. While I honored the genius of that great man, and held friendly personal relations with him, I considered his doctrines on these points--or rather the doctrines advocated by him during the most conspicuous and influential portions of his public career--to be mischievous, and the more dangerous to the welfare of the country and the liberties of mankind on account of the signal ability and magnificent eloquence with which they were argued.

[Footnote 80: Elliott's "Debates," vol. i, p. 239; "Madison Papers," pp. 1119-1124.]

[Footnote 81: "Madison Papers," p. 1184.]

[Footnote 82: "Federalist," No. lxxxi.]

[Footnote 83: "Federalist," No. lxxxiv.]

[Footnote 84: Ibid., No. lxxxv.]

[Footnote 85: Elliott's "Debates," vol. iii, pp. 389-391.]

[Footnote 86: Elliott's "Debates," vol. iii, p. 503.]

[Footnote 87: Curtis's "Life of Webster," chap. xxxvii, vol. ii, pp. 518, 519.]