The Constitution not adopted by one People "in the
Aggregate."--A Great Fallacy exposed.--Mistake of Judge
Story.--Colonial Relations.--The United Colonies of New
England.--Other Associations.--Independence of Communities
traced from Germany to Great Britain, and from Great Britain to
America.--Mr. Everett's "Provincial People."--Origin and
Continuance of the Title "United States."--No such Political
Community as the "People of the United States."
The historical retrospect of the last three chapters and the extracts
from the records of a generation now departed have been presented as
necessary to a right understanding of the nature and principles of the
compact of 1787, on which depended the questions at issue in the
secession of 1861 and the contest that ensued between the States.
We have seen that the united colonies, when they declared their
independence, formed a league or alliance with one another as "United
States." This title antedated the adoption of the Articles of
Confederation. It was assumed immediately after the Declaration of
Independence, and was continued under the Articles of Confederation; the
first of which declared that "the style of this confederacy shall be
'The United States of America'"; and this style was retained--without
question--in the formation of the present Constitution. The name was not
adopted as antithetical to, or distinctive from, "confederate," as some
seem to have imagined. If it has any significance now, it must have had
the same under the Articles of Confederation, or even before they were
adopted.
It has been fully shown that the States which thus became and continued
to be "united," whatever form their union assumed, acted and continued
to act as distinct and sovereign political communities. The monstrous
fiction that they acted as _one people "in their aggregate capacity"_
has not an atom of fact to serve as a basis.
To go back to the very beginning, the British colonies never constituted
one people. Judge Story, in his "Commentaries" on the Constitution,
seems to imply the contrary, though he shrinks from a direct assertion
of it, and clouds the subject by a confusion of terms. He says: "Now, it
is apparent that none of the colonies before the Revolution were, in the
most large and general sense, independent or sovereign communities. They
were all originally settled under and subjected to the British Crown."
And then he proceeds to show that they were, in their colonial
condition, not _sovereign_--a proposition which nobody disputed. As
colonies, they had no claim, and made no pretension, to sovereignty.
They were subject to the British Crown, unless, like the Plymouth
colony, "a law unto themselves," but they were _independent of each
other_--the only point which has any bearing upon their subsequent
relations. There was no other bond between them than that of their
common allegiance to the Government of the mother-country. As an
illustration of this may be cited the historical fact that, when John
Stark, of Bennington memory, was before the Revolution engaged in a
hunting expedition in the Indian country, he was captured by the savages
and brought to Albany, in the colony of New York, for a ransom; but,
inasmuch as he belonged to New Hampshire, the government of New York
took no action for his release. There was not even enough community of
feeling to induce individual citizens to provide money for the purpose.
There were, however, local and partial confederacies among the New
England colonies, long before the Declaration of Independence. As early
as the year 1643 a Congress had been organized of delegates from
Massachusetts, Plymouth, New Haven, and Connecticut, under the style of
"The United Colonies of New England." The objects of this confederacy,
according to Mr. Bancroft, were "protection against the encroachments of
the Dutch and French, security against the tribes of savages, the
liberties of the gospel in purity and in peace."[35] The general affairs
of the company were intrusted to commissions, two from each colony; but
the same historian tells us that "to each its respective local
jurisdiction was carefully reserved," and he refers to this as evidence
that the germ-principle of State-rights was even then in existence.
"Thus remarkable for unmixed simplicity" (he proceeds) "was the form of
the first confederated government in America.... There was no president,
except as a moderator of its meetings, and the larger State [_sic_],
Massachusetts, superior to all the rest in territory, wealth, and
population, had no greater number of votes than New Haven. But the
commissioners were in reality little more than a deliberative body; they
possessed no executive power, and, while they could decree a war and a
levy of troops, it remained for the States to carry their votes into
effect."[36]
This confederacy continued in existence for nearly fifty years. Between
that period and the year 1774, when the first Continental Congress met
in Philadelphia, several other temporary and provisional associations of
colonies had been formed, and the people had been taught the advantages
of union for a common purpose; but they had never abandoned or
compromised the great principle of community independence. That form of
self-government, generated in the German forests before the days of the
Cæsars, had given to that rude people a self-reliance and patriotism
which first checked the flight of the Roman eagles, which elsewhere had
been the emblem of their dominion over the known world. This
principle--the great preserver of all communal freedom and of mutual
harmony--was transplanted by the Saxons into England, and there
sustained those personal rights which, after the fall of the Heptarchy,
were almost obliterated by the encroachments of Norman despotism; but,
having the strength and perpetuity of truth and right, were reasserted
by the mailed hands of the barons at Runnymede for their own benefit and
that of their posterity. Englishmen, the early settlers, brought this
idea to the wilds of America, and it found expression in many forms
among the infant colonies.
Mr. Edward Everett, in his Fourth-of-July address, delivered in New York
in 1861, following the lead of Judge Story, and with even less caution,
boldly declares that, "before their independence of England was
asserted, they [the colonies] constituted _a provincial people_." To
sustain this position--utterly contrary to all history as it is--he is
unable to adduce any valid American authority, but relies almost
exclusively upon loose expressions employed in debate in the British
Parliament about the period of the American Revolution--such as "that
people," "that loyal and respectable people," "this enlightened and
spirited people," etc., etc. The speakers who made use of this
colloquial phraseology concerning the inhabitants of a distant
continent, in the freedom of extemporaneous debate, were not framing
their ideas with the exactitude of a didactic treatise, and could little
have foreseen the extraordinary use to be made of their expressions
nearly a century afterward, in sustaining a theory contradictory to
history as well as to common sense. It is as if the familiar expressions
often employed in our own time, such as "the people of Africa," or "the
people of South America," should be cited, by some ingenious theorist of
a future generation, as evidence that the subjects of the Khedive and
those of the King of Dahomey were but "one people," or that the
Peruvians and the Patagonians belonged to the same political community.
Mr. Everett, it is true, quotes two expressions of the Continental
Congress to sustain his remarkable proposition that the colonies were "a
people." One of these is found in a letter addressed by the Congress to
General Gage in October, 1774, remonstrating against the erection of
fortifications in Boston, in which they say, "We entreat your Excellency
to consider what a tendency this conduct must have to irritate and force
_a free people_, hitherto well disposed to peaceable measures, into
hostilities." From this expression Mr. Everett argues that the Congress
considered themselves the representatives of "a people." But, by
reference to the proceedings of the Congress, he might readily have
ascertained that the letter to General Gage was written in behalf of
"_the town of Boston and Province of Massachusetts Bay_," the people of
which were "considered by all America as suffering in the common cause
for their noble and spirited opposition to oppressive acts of
Parliament." The avowed object was "to entreat his Excellency, from the
assurance we have of the peaceable disposition of _the inhabitants of
the town of Boston and of the Province of Massachusetts Bay_, to
discontinue his fortifications."[37] These were the "people" referred to
by the Congress; and the children of the Pilgrims, who occupied at that
period the town of Boston and Province of Massachusetts Bay, would have
been not a little astonished to be reckoned as "one people," in any
other respect than that of the "common cause," with the Roman Catholics
of Maryland, the Episcopalians of Virginia, the Quakers of Pennsylvania,
or the Baptists of Rhode Island.
The other citation of Mr. Everett is from the first sentence of the
Declaration of Independence: "When in the course of human events it
becomes necessary for _one people_ to dissolve the political bands which
have connected them with another," etc., etc. This, he says,
characterizes "the good people" of the colonies as "one people."
Plainly, it does no such thing. The misconception is so palpable as
scarcely to admit of serious answer. The Declaration of Independence
opens with a general proposition. "One people" is equivalent to saying
"_any_ people." The use of the correlatives "one" and "another" was the
simple and natural way of stating this general proposition. "One people"
applies, and was obviously intended to apply, to all cases of the same
category--to that of New Hampshire, or Delaware, or South Carolina, or
of any other people existing or to exist, and whether acting separately
or in concert. It applies to any case, and all cases, of dissolution of
political bands, as well as to the case of the British colonies. It does
not, either directly or by implication, assert their unification, and
has no bearing whatever upon the question.
When the colonies united in sending representatives to a Congress in
Philadelphia, there was no purpose--no suggestion of a purpose--to merge
their separate individuality in one consolidated mass. No such idea
existed, or with their known opinions could have existed. They did not
assume to become a united colony or province, but styled themselves
"united colonies"--colonies united for purposes of mutual counsel and
defense, as the New England colonies had been united more than a hundred
years before. It was as "_United States_"--not as a state, or united
people--that these colonies--still distinct and politically independent
of each other--asserted and achieved their independence of the
mother-country. As "United States" they adopted the Articles of
Confederation, in which the separate sovereignty, freedom, and
independence of each was distinctly asserted. They were "united States"
when Great Britain acknowledged the absolute freedom and independence of
each, distinctly and separately recognized by name. France and Spain
were parties to the same treaty, and the French and Spanish idioms still
express and perpetuate, more exactly than the English, the true idea
intended to be embodied in the title--_les États Unis_, or _los Estados
Unidos_--the States united.
It was without any change of title--still as "United States"--without
any sacrifice of individuality--without any compromise of
sovereignty--that the same parties entered into a new and amended
compact with one another under the present Constitution. Larger and more
varied powers were conferred upon the common Government for the purpose
of insuring "a more perfect union"--not for that of destroying or
impairing the integrity of the contracting members.
The point which now specially concerns the argument is the historical
fact that, in all these changes of circumstances and of government,
there has never been one single instance of action by the "people of the
United States in the aggregate," or as one body. Before the era of
independence, whatever was done by the people of the colonies was done
by the people of each colony separately and independently of each other,
although in union by their delegates for certain specified purposes.
Since the assertion of their independence, the people of the United
States have never acted otherwise than as the people of each State,
severally and separately. The Articles of Confederation were established
and ratified by the several States, either through conventions of their
people or through the State Legislatures. The Constitution which
superseded those articles was framed, as we have seen, by delegates
chosen and empowered by the several States, and was ratified by
conventions of the people of the same States--all acting in entire
independence of one another. This ratification alone gave it force and
validity. Without the approval and ratification of the people of the
States, it would have been, as Mr. Madison expressed it, "of no more
consequence than the paper on which it was written." It was never
submitted to "the people of the United States in the aggregate," or _as
a people_. Indeed, no such political community as the people of the
United States in the aggregate exists at this day or ever did exist.
Senators in Congress confessedly represent the States as equal units.
The House of Representatives is not a body of representatives of "the
people of the United States," as often erroneously asserted; but the
Constitution, in the second section of its first article, expressly
declares that it "shall be composed of members chosen by _the people of
the several States_."
Nor is it true that the President and Vice-President are elected, as it
is sometimes vaguely stated, by vote of the "whole people" of the Union.
Their election is even more unlike what such a vote would be than that
of the representatives, who in numbers at least represent the strength
of their respective States. In the election of President and
Vice-President the Constitution (Article II) prescribes that "_each
State_ shall appoint, in such manner as the Legislature thereof may
direct, a number of electors" for the purpose of choosing a President
and Vice-President. The number of these electors is based partly upon
the equal sovereignty, partly upon the unequal population of the
respective States.
It is, then, absolutely true that there has never been any such thing as
a vote of "the people of the United States in the aggregate"; no such
people is recognized by the Constitution; and no such political
community has ever existed. It is equally true that no officer or
department of the General Government formed by the Constitution derives
authority from a majority of the whole people of the United States, or
has ever been chosen by such majority. As little as any other is the
United States Government a government of a majority of the mass.
[Footnote 35: Bancroft's "History of the United States," vol. i, chap.
ix.]
[Footnote 36: Bancroft's "History of the United States," vol. i, chap.
ix.]
[Footnote 37: "American Archives," fourth series, vol. i, p. 908.]