CHAPTER III.

THE CONSTITUTIONAL CONVENTION INTENDED NATIONALITY.

Let us now retrace our steps and see what took place in the convention

that made the Constitution, and what those that made it intended.

Fortunately we have the journals of the convention that framed the

Constitution; the minutes, until he left, of Mr. Yates, a delegate from

the State of New York; and Madison’s full and careful report of all the

proceedings, debates, and votes. From these sources we shall see that

the makers intended, and that they considered they had made, a

perpetual, consolidated, National Government.

The convention was called to amend the articles of the confederacy, and

to it were sent most of the distinguished men of the country. The State

of Virginia took an early and important part in the formation of the new

government. Before the meeting of the convention, Madison wrote to

Edmund Randolph, one of the delegates, that it would be well for him to

prepare some propositions from Virginia, he in his letter suggesting

what they should be. Immediately after the organization of the

convention after the choice of Washington as the presiding officer and

the establishing of standing rules, Randolph introduced a series of

resolutions, which had been considered by his colleagues and were known

in the convention as those of Virginia. They were in substance, that the

articles of confederation should be corrected and enlarged; that the

rights of suffrage in the national Legislature ought to be proportioned

to the quotas of contribution, or to the number of free inhabitants;

that the Legislature should consist of two branches, the first branch to

be elected by the people of every State; that the Legislature should

have supreme rights with coercive power against any member failing to

perform its duty, and that there should be a national Executive and

Judiciary.

These resolutions were referred to the next meeting. At that meeting

Randolph, at the suggestion of Gouverneur Morris, who said that his

subsequent resolutions did not agree with the first, moved that this

first resolution, which was that the articles of confederation should be

corrected and enlarged, should be postponed, which was unanimously

agreed to. Randolph then proposed three other resolutions, the first two

that a union merely federal and treaties between the States as

sovereigns would be insufficient. The convention, after debate and other

propositions, considering the first two resolutions unnecessary, passed

the third, which was: “That a National Government ought to be

established consisting of a supreme legislative, executive, and

judiciary.” All the States present voted ay, Connecticut only no, New

York divided--Hamilton ay, Yates no.[20] Yates in his minutes says

Randolph in first proposing his resolutions, “candidly confessed they

were not intended for a federal government; and that he meant a strong

consolidated union.” Mr. Morris on the 30th observed that Randolph’s

preamble as to amending the articles of the confederacy was unnecessary,

as the subsequent resolutions would not agree with it.[21]

[20] 5 Elliot, 132-34.

[21] 1 Elliot, 391 and 392. Yates’ minutes.

The votes in the convention were as in the confederacy, each State had

one and voted as a whole. If the delegation of a State was equally

divided, its vote was lost.

By the 13th of June the Virginia resolutions had been considered and

passed with changes and amendments,[22] the first resolution as changed,

being that a national government ought to be established; the plan as to

representation (Resolves 7 and 8), being that the representation in the

two branches of the Legislature should be in accordance with the free

population and three fifths of all other persons (slaves), and excepting

Indians.

[22] 5 Elliot, 189-90 states the resolutions.

Further action on this report was deferred to June 14th at the request

of Mr. Patterson, who then offered a plan called that of New Jersey,

formed by the deputations of Connecticut, New York, New Jersey, and

Delaware, preserving the articles of the confederation, one Legislature,

the equal vote of each State, but revising, correcting, and enlarging

the conferred powers so as to render them “adequate to the exigencies of

government and the preservation of the Union.” In the resolutions the

Executive, if any State or any body of men in the State should oppose

the execution of the acts or treaties of the government, was to call

forth the power of the States to enforce and compel an obedience.[23]

The ratification was to be by the Legislatures of the States; that of

the Virginia plan was to be by the people. The objection that the

delegates to the convention were exceeding their authority, which was

only to amend the articles of the confederation, was again brought up;

the discussion whether the government should be national or a

confederacy was again renewed. It was pointed out as a fatal objection

by Madison, Hamilton (who then spoke for the first time), and others,

that under a confederacy the coercing of a State to pay its quota or

compelling it to obey would in fact be a civil war, where the militia of

other States would have to march against the delinquent power. Hamilton

said he neither liked the Virginia nor the New Jersey plan; he praised

the constitutional monarchy of Great Britain as the most perfect

government. He was particularly opposed to Patterson’s plan, “being

fully convinced that no amendment of the confederation leaving the

States in possession of their sovereignty could possibly answer the

purpose.”[24] He stated the plan he should prefer: a general government,

with an executive and a senate for life or good behavior, the general

government to have the appointment of the governors of each State, who

should have a veto over the State laws.[25] He wished the States

abolished as States, but admitted the necessity of their having

subordinate jurisdiction.[26] He was aware that others did not approve

of his plan, nor would they, he thought, of that of Virginia, but they

might finally come to it. He thought universal suffrage a bad principle

of government. He apparently did not know how strongly the democratic

feeling existed amongst the people of this country; nor perhaps

appreciate the strength of a government that has at its back the will

and brute power of the majority of fighting men, as shown in our civil

war. He made that unfortunate speech, afterwards used against him, that

the people were getting tired of an excess of _democracy_, “and what is

even the Virginia plan _but pork still, with a little change of the

sauce_.”[27]

[23] 5 Elliot, 192, sixth resolve.

[24] 5 Elliot, 199.

[25] See his plan, 5 Elliot, 205.

[26] 5 Elliot, 212.

[27] Elliot, 423; also 5 Elliot, p. 206 note.

As no one seconded Hamilton’s plan and he did not urge it, the question

before the convention was between Mr. Patterson’s plan enlarging the

power of the confederacy or the national one of Virginia. The former,

after much debate, was laid aside, only New York and New Jersey voting

no. The Virginia resolutions were taken up again by a vote of seven

States ay, to three nay, Maryland divided, which was a vote, so Madison

says, that they “should be adhered to as preferable to those of Mr.

Patterson.”[28]

[28] 5 Elliot, 212.

That the word national was dropped from the resolutions of Virginia has

been dwelt upon by Southern writers, and by Calhoun at length in his

speech of 1833, as a proof that the national idea was abandoned. No such

conclusion can be drawn from the way in which it was done. On June 20th,

the day after the Virginia resolutions were again taken up and adopted,

the first resolution being before the House, Mr. Ellsworth moved it

should read: “That the government of the United States ought to consist

of a supreme legislative, executive, and judiciary.” This alteration, he

said would drop the word national and retain the proper title, “The

United States.” Mr. Randolph said he did not object, and it was

unanimously acquiesced in.

The second resolution, that the Legislature should consist of two

branches, was taken up. Mr. Lansing moved instead, that “legislation be

vested in the United States in Congress,” and again urged a confederacy.

On this George Mason,[29] to whom Mr. Lodge refers, said he did not

expect this point to be re-agitated, and compared a national government

to a confederate one. He spoke, “with horror,” of the necessity that the

latter would have of collecting its taxes by compulsion over States, of

marching the militia of one State against another to enforce taxes;

_rebellion_ was the only case where military force should be exerted

against citizens. In the early days of the convention he had urged that

the new government should be one over individuals not States. He would

not, however, abolish the State governments or render them absolutely

insignificant. This second resolution was carried seven States to three,

Maryland divided.[30]

[29] 5 Elliot, 216, 217.

[30] 5 Elliot, 223.

The next resolution, that the first branch of the Legislature should be

elected by the people, was supported by Mason, and Wilson said he

considered it the corner-stone of the fabric; only New Jersey voted

against it, Maryland divided.

On the resolution of how the second branch of the Legislature should be

elected--by the State Legislature or the people,--Virginia voted that it

should be by the people.[31]

[31] 5 Elliot, 240 and note.

That the representation in the first branch should be in proportion to

the people was established. Then June 29th began the great controversy

in the convention of how the representation should be in the second

branch, whether in proportion to population or by State.

When this discussion took place, the three great States were Virginia,

Massachusetts, and Pennsylvania. Virginia then comprised the territory

which is now West Virginia and Kentucky, and, including her slaves, had

the largest population. Massachusetts, instead of being insignificant in

territory, had the large area of Maine, which was made into a separate

State in 1820. Massachusetts had the largest white population and had

furnished more soldiers than any other State in the Revolution; and it

was probably for this reason that Madison alluded to it as the most

powerful State. New York had then about the same population that

Connecticut and Maryland had, and from apparent want of foresight as to

its future great and immediate increase in population and power took a

prominent part with the smaller States that wished representation should

be by an equal vote in both branches of the new Legislature. The

representatives of Connecticut, Sherman and Ellsworth, were also

strenuously in favor of equality of States. Ellsworth, in reply to

Madison’s attack on Connecticut for refusing compliance to federal

requisitions, excused his State by reason of her distress and

impoverishment by her exertions during the revolutionary war, and

asserted that the muster rolls will show she had more troops in the

field in the revolutionary war than even Virginia, and he appealed to

the presiding officer, Washington, as to the truth of his statement.[32]

Georgia, then estimated to be the smallest in population, trusting to

the future settlement of its claimed large territory extending from the

sea-coast to the Mississippi, usually voted with the larger States.[33]

Mr. Bedford, of Delaware, asserted that South Carolina, puffed up with

the possession of her wealth and negroes, and North Carolina were both

united with the great States, and for the smaller States threatened,

“sooner than be ruined, there are _foreign powers_ who will take us by

the hand.”[34] For this he was very justly rebuked by Rufus King, of

Massachusetts. It was hard for the smaller States having an equal vote

in the Confederacy to change it for one proportioned to inhabitants. It

was estimated that Delaware would have but one representative in each

branch to Virginia’s sixteen. The argument of the smaller States was

that Virginia, Massachusetts, and Pennsylvania would combine to crush

the other States. Madison replied that their interests were so different

there was no fear of this. Massachusetts’ product was fish;

Pennsylvania’s, flour; Virginia’s, tobacco. He predicted that the

struggle, when it came, would be between the Southern States with their

interests as exporters and the Northern commercial States. The opinion

was pretty generally entertained that any division that might arise

would be between North and South.

[32] 1 Elliot, 469.

[33] See estimates, Note 160, 5 Elliot, 598.

[34] 1 Elliot, 472.

The dispute between the greater and smaller States was finally settled

by the provision that all money bills should originate in the first

branch of the Legislature, that direct taxation should be in proportion

to representation in that branch, and that there should be an equal

representation in the upper House, the vote however being _per capita_

and not by States. The final vote on this settlement was almost

unanimous, only one State, Maryland, in the negative.[35]

[35] 5 Elliot, 357.

It has been argued by Davis, Stephens, and others, that this equal

representation of the States in the Senate was an establishment of a

confederacy, and it has been a stumbling-block in the way of many

constitutional commentators who have considered it a _compromise_

between a national and a confederate government. It is a _compromise of

the right of representation_ in one branch only of the legislative

department of the government; but it is _no compromise_ in the _powers

granted_. The powers granted to the government are of supremacy,

legislative, executive, and judicial, over State and State constitutions

and State judiciaries. If there had been rotten boroughs established by

the Constitution like those then in Great Britain, if Delaware and Rhode

Island had been given double the representation that Virginia had, or if

every slave of the South had counted for two white men in the free

States, the granted powers of the government would have been none the

less supreme and national, as the Constitution itself declares, and as

they in reality are. Scotland is not a sovereign nation because her

peers elect twelve of their number to the House of Lords of the

government of Great Britain. Oxford and Cambridge Colleges are not

sovereign powers because they choose representatives to the House of

Commons. Charles Pinckney of South Carolina with reason said: “Give New

Jersey an equal vote and she will dismiss her scruples and concur in the

national system.”

The other resolutions of Virginia, except those relating to an

executive, had been acted upon, when Elbridge Gerry of Massachusetts

moved, that “the proceedings of the convention for the establishing of a

_national government_” “be referred to a committee to prepare and report

a Constitution”; a committee of five was agreed upon, no one

objecting,[36] no one denying that the government was a national one.

From the 23d to the 26th of July the plan of the Executive was

considered and settled, and was unanimously referred to the Committee of

Detail, that of five already appointed to prepare and report the

Constitution. The convention adjourned until August 6th, to give the

necessary time to their committee. The resolves then passed are stated

in Elliot’s _Debates_.[37]

[36] 5 Elliot, 357.

[37] 5 Elliot, 374-6.

The first was, that the government of the United States ought to consist

of a supreme legislative, judiciary, and executive. The second, third,

fourth, and fifth were the resolves as to the two branches of the

Legislature. The sixth was: “Resolved, that the national Legislature

ought to possess the legislative rights vested in Congress by the

Confederation; and moreover to legislate in all cases for the general

interests of the Union,” etc., etc.

In the 12th, 13th, 14th, 15th, 16th, 20th, and 23d--the last, the

executive, the legislative, the judiciary, and the government were

termed national. These are the resolutions passed by the convention, all

declaring the government and every branch of it was national. This was

the plan agreed on; no changes were made except of detail and for

euphony, and some modifications.

On August 6th the Committee of Detail reported the Constitution; a

printed copy was furnished to each member.[38] The preamble was, “We,

the people of the States of New Hampshire, Massachusetts,” then follow

the names of all the other States, “do ordain, declare, and establish

the following Constitution for the government of ourselves and our

posterity.”

[38] Copy of Constitution as reported, 5 Elliot, 376-81.

“Article I. The style of the government shall be the United States of

America.”

“Article II. The government shall consist of supreme legislative,

executive, and judicial powers.”

By Article X. the executive was vested in a president, to hold his

office for seven years, but not re-eligible, whose title was to be “His

Excellency.”

It will be noticed that the preamble had the declaration of perpetuity,

that we, the people, made it for “our posterity.”

The Constitution was then taken up by its separate articles, and they

were minutely and thoroughly discussed and somewhat altered. Each was

again passed, taking all the time from the 7th of August until September

12th.

The definition of treason was considered at great length, and in the

debate it was shown that States might punish for acts against their

authority under the name of treason or under other names. Madison

thought the definition too narrow; Mason was in favor of extending the

definition and adopting the statute of Edward III.[39] The record of the

convention shows this article punishing treason was unanimously agreed

to, notwithstanding the objection Luther Martin said he made.[40]

[39] 5 Elliot, 447.

[40] 5 Elliot, 451. Article VII., Sec. 2, was then agreed to

_nem-con_.

The supremacy of the Constitution and the laws of the United States over

the States and all citizens and State judiciary was passed, no one

opposing, August 23d.[41]

[41] 5 Elliot, 467.

The provisions relating to the office of President and his powers and

duties were much discussed and changed, and the title of “His

Excellency” dropped.

The amended draft of the Constitution was submitted to a Committee of

Style and Arrangement, of which Gouverneur Morris was chairman, and they

changed the preamble to, “We, the people of the United States,” from

that of “We, the people of New Hampshire,” etc.; they inserted the

words, “in order to form a more perfect union, establish justice, insure

domestic tranquillity, provide for the common defence, promote the

general welfare, and secure the blessings of liberty,” retaining that it

was to ourselves and our posterity, that we do ordain and establish this

Constitution of the United States of America. It has been argued and

strenuously claimed that this change to “We, the people of the United

States,” was one made for euphony at the end of the session of the

convention, and has no force as a declaration that it was made by the

people. But it will be seen it took the place of one as explicit, one

declaring it was by the people of every State and for themselves and

posterity. It was necessary to drop the name of each State, as the

Constitution was to be obligatory only on the people of those States

adopting it. This change was not objected to by any one. The convention

considered this final draft from the 12th to the 17th of September, and

made some changes, when it was signed by all the delegates present

except four.

The members of the convention evidently had studied for the occasion and

were learned in the history of leagues and governments; they referred to

Montesquieu, to Holland, Swiss Cantons, United Netherlands, Poland,

Amphictyonic Conference, Archæan and Lycian Leagues, the Germanic body,

and to Germany, from which the general principles of government came.

There was a diversity of opinion in the convention about the durability

of the Union. Its rapid increase in population, its future greatness in

territory (for the members believed in the acquisition of the

Mississippi to its mouth), were foreseen and spoken of by many.

Some there were who thought, with the extreme difficulty of

communication and intercourse, not knowing how steam navigation and the

railroad would almost annihilate distance, that it would be impossible

to keep such an immense territory and people together. Others

congratulated themselves as the founders of a great empire. Sherman of

Connecticut, on the question of limiting the number of new States to be

admitted, from the fear of their controlling the old thirteen, replied:

“We are providing for our posterity, our children and grandchildren, who

are as likely to be citizens of new Western States as of the old

States.”[42] No one suggested any dissolution by claim of right of

secession.

[42] 5 Elliot, 310.

When the supremacy and nationality of the intended government were

settled, Yates and Lansing (who with Hamilton formed the delegation from

New York) on July 3d left the convention, and in their letter to

Governor Clinton,[43] stated that they did so because they were chosen

to revise the Articles of the Confederation and that the principles of

the Constitution sanctioned by the convention met with their “decided

and unreserved dissent,” as would any system “which had in object the

consolidation of the United States into one government”; and that “a

persuasion that their further attendance would be fruitless and

unavailing rendered them less solicitous to return.”

[43] 1 Elliot, 480.

We find after equal representation in the Senate had been granted to the

smaller States, that their delegates took a prominent part in enlarging

and strengthening the powers of the General Government.

Luther Martin, who throughout the session of the convention had been

the most able and persistent opponent to a national government,

expressed his dissatisfaction at the close and was one of the four who

refused to sign. The three Southern States, North and South Carolina and

Georgia, as was stated in the convention, had exalted opinions of their

future population, and had been often on the side of the larger States.

They had obtained their wishes--representation for their slaves, the

right to import them until 1808,[44] the prohibition of export duties on

their rice, indigo, and tobacco, yielding only the taxation of imports.

[44] Virginia opposed the importation of slaves. Mason particularly

condemned it. 5 Elliot, 458.

General Charles Cotesworth Pinckney of South Carolina, towards the close

of the convention, expressed the satisfaction of the South at the

liberal conduct shown to them, and that it was for the interest of the

weak Southern States to be united with the strong Eastern States, that

the government should have the power of making commercial regulations,

and that though he had had his prejudices against the Eastern States,

“he had found them as liberal and candid as any men whatever.”[45]

[45] 5 Elliot, 489.

Washington, the presiding officer, who had been advised by his best

friends not to accept the nomination as a member of the convention, and

who from a sense of duty assented to act, spoke but seldom.

At the close of the proceedings he urged an amendment that removed the

objections of some members, which was agreed to unanimously.

Next to Washington, Franklin was perhaps the most prominent person in

the country. His motions and suggestions did not generally meet with the

approval of the convention, excepting perhaps in reference to the

equality of representation in the Senate, where the committee appointed

under his resolutions brought in a plan for a settlement. His witty

remark, when the last members were signing, has taken its place in

history. Looking towards the President’s chair, at the back of which a

rising or setting sun had been painted, he observed to those around him

that painters had found it difficult to distinguish a rising from a

setting sun, that during the session, between his hopes and fears as to

the issue, he would look at the sun behind the President and could not

tell whether it was rising or setting, but now he knew that it was a

rising one. Hamilton did not conceal his dislike to the plan adopted,

but promised his ardent support. His strenuous labors to that end in the

New York convention against the most persistent and determined

opposition were finally crowned with success. Gerry of Massachusetts

refused to sign; Gorham and Rufus King--who with Gerry had taken active

parts in the discussion,--together with their colleague, Caleb Strong,

signed. Madison and Blair alone signed for Virginia. Mason, though he

had said he would bury his bones in the city rather than the convention

should dissolve without doing anything,[46] and had been from the

beginning in favor of a national government, declined to sign what he

had been so instrumental in making; because he thought the great power

given to the Senate of trying impeachment, of making treaties, of

appointing ambassadors, judicial and other officers, would make an

aristocracy of its members. He and Randolph, the one who brought the

plan forward, thought the Constitution agreed on needed amendment and

wished another convention. One cannot help thinking their decision might

have been different, if Virginia had been allowed her proposed

representation in the Senate in proportion to population.

[46] 5 Elliot, 278.

We have already stated that the Constitution was sent to the Congress of

the Confederacy and by them submitted to the State Legislatures, who all

sanctioned it so far as to submit it to conventions chosen by the

people. In each and every State the coming into the new government was

ultimately decided by the people, and not by the State government.

In many of the States the adoption of the Constitution was

pertinaciously and vehemently opposed on the ground of the great and

excessive powers given to the new government, that might be destructive

of the liberty of the people. The appointment of officers, and the power

of the President with his command of an army and navy in peace as well

as in war, the legislative rights of Congress with an unlimited right of

taxation, were so great that eminent and prominent men expressed their

belief that the government would end in a despotism.

In Pennsylvania, Wilson at great length explained the new form of

government, stating “that by adopting this system we become a nation; at

present we are not one.”[47] His labors in the State and the general

conventions have been fully recognized by recent writers.

[47] 2 Elliot, 526.

It was only after a long and heated discussion in the large convention

of the then important State of Massachusetts, where were present, John

Hancock, Fisher Ames, Rufus King, and Sam Adams, who reluctantly yielded

consent, that the Constitution was adopted, the majority in favor being

small.

In Virginia, which was the tenth State to come into the Union, Patrick

Henry, who had declined the appointment to the general convention,

objected because the Constitution said “We, the people,” instead of “We,

the States”; and “if the States be not the agents of this compact, it

must be one great consolidated national government of the people of all

the States.”[48] “It had an awful squinting towards monarchy.” “The

federal convention ought to have amended the old system.” George Mason

objected because the Constitution had no bill of rights and would end in

a monarchy or corrupt oppressive aristocracy, and the confederation be

converted to one grand consolidated government.[49] The acceptance was

ably argued and urged by Madison and others and Edmund Randolph, who had

refused to sign, but had since come to the conclusion that the only

chance of escape from the discredited, crumbling Confederacy was in

adopting the new Constitution. He said in the beginning of the debate,

“I shall endeavor to make the committee sensible of the necessity of

establishing a _national government_. In the course of my argument I

shall show the inefficacy of the confederation.”[50]

[48] 3 Elliot, 22.

[49] See Mason’s objections, 1 Elliot, 494, also _Debates_.

[50] 3 Elliot, 64.

The acceptance of New York, her territory dividing the Central and

Southern States from the Eastern, was considered all important. Her

ratification of the Constitution came late. She was the eleventh State,

and neglected to vote for President at Washington’s first election.

John Jay, the Minister for Foreign Affairs of the Congress of the United

States, in an address to the people, plainly told them the new

government was national. He said: “Friends and Fellow-Citizens--The

convention concurred in opinion with the people, that a national

government, competent to every national object, was indispensably

necessary.”[51]

[51] 1 Elliot, 496.

Hamilton, Jay, Chancellor and other Livingstons, Melanchthon Smith, and

a number of leading citizens were members of the convention. Yates and

Lansing, who were members of the general convention that made the

Constitution, and Governor George Clinton strenuously and persistently

opposed the ratification, alleging as the reason the danger from the

great powers given to the General Government subverting those of the

State.

This New York convention for a long time was opposed to the

ratification. Hamilton, who was exceedingly zealous for it, wrote almost

in despair to Madison, asking if a State could adopt the Constitution

conditionally and afterwards withdraw from the Union if its proposed

amendments were not adopted. Madison replied, that “a conditional

ratification did not make a State a member of the Union. The

Constitution requires an adoption _in toto_ and _forever_. It has been

so adopted by the other States. An adoption for a limited time would be

as defective as of some articles only.” Hamilton did not question the

correctness of this opinion; but New York was brought finally to giving

her consent. Mr. Lansing’s two motions (which show that he thought the

Union perpetual) of a conditional ratification with a bill of rights,

and of a reservation of a right to withdraw from the Union after a

certain number of years unless the amendments proposed should previously

be submitted to a general convention, were negatived;[52] a similar

conditional acceptance had been proposed in the Virginia convention and

abandoned.

[52] 2 Elliot, 412. The acceptance was passed in full confidence that

the bill of rights proposed by New York would be passed.

The proceedings in most of the conventions called by the several States

are reported in Elliot’s _Debates_. In none of them was the theory

advanced or suggested that a State had the power to secede from the

government or decide as an independent sovereignty on the validity of

the acts or laws of the new government. If the power to nullify was then

supposed to exist, if the right of a State to leave at its will was

thought of, why was it not then urged that nullification and secession

were easy remedies if the Union should be or become oppressive? No one

imagined that there was any such power remaining in the States. No one

answered to the alleged fear of oppression and tyranny that the State

could nullify or secede. Neither friend nor foe, as Webster said,

claimed either.

On all occasions, in all the speeches, it was assumed as granted, that

the consolidation of the States, as it was termed, was national and

perpetual. Even in South Carolina the proceedings are conclusive on

this point. The Constitution first came before the legislature on the

question of submitting it to the people of the State. Charles Pinckney,

who had also been a very prominent member of the general convention that

made the Constitution, said: “He repeated that the necessity of having a

government which should at once operate upon the people, and not upon

the States, was conceived to be indispensable by every delegation

present.”[53]

[53] 4 Elliot, 256.

The question whether the States ever had individual sovereignty arose in

the convention chosen for deciding on the ratification of the

Constitution, and General Charles C. Pinckney[54] insisted that our

independence came from the Declaration of Independence made by the

Congress of the Confederacy, wherein in the name of the good people of

these colonies we were declared free and independent States. The

separate independence and individual sovereignty of the several States

was never thought of, not even mentioned by name in any part of it. The

same objection in South Carolina as in other States to the Constitution

as destructive of liberty was made. James Lincoln, a delegate from

Ninety-six, said: “From a democratic you are rushing into an

aristocratic government. Liberty! what is liberty? The power of

governing yourselves. If you adopt this Constitution have you this

power? No; you give it into the hands of a set of men who live one

thousand miles distant from you.”[55]

[54] 4 Elliot, 301.

[55] 4 Elliot, 313. The objections to the Constitution came very

generally from the interior western parts of the State. They were so in

Massachusetts, Virginia, and New York.

The words of ratification of the States are also conclusive on these

points. We will take the three important States whose acceptance was for

a long time doubtful. Massachusetts in her pious and reverential

ratification used the word compact, which numerous Southern writers,

Davis, Stephens, and others, bring up as proof that Massachusetts

considered the Constitution a mere confederacy and not a government.

To refute this it is but necessary to give the very words used:

“The Convention, acknowledging with grateful hearts the

goodness of the Supreme Ruler of the Universe in affording the

people of the United States, in the course of his providence,

an opportunity deliberately and peaceably without fraud or

surprise of entering into an explicit and solemn compact with

each other, by assenting to and ratifying a new constitution in

order to form a more perfect union, ... do, in the name and

behalf of the people of the Commonwealth of Massachusetts,

assent to and ratify the said Constitution for the United

States of America.”

It is _the people of the United States_, not the States, nor the people

of the State of Massachusetts, that enter into this explicit and solemn

compact with each other for a more perfect union. As we have said

before, a compact may be for a national government or for a confederacy.

If the convention understood that it was States making a confederacy,

they would have said the people of the State, and not the people of the

United States.

We come next to Virginia’s acceptance of the Constitution, which, to

Calhoun’s peculiar mind, was “a conditional one.” “A condition made in

the interest of all the States, and of which any State could avail.”

The acceptance was made “_in behalf of the people of Virginia_”; the

condition was, “that the powers granted under the Constitution being

derived from _the people of the United States_ may be resumed _by them_,

whensoever the same shall be perverted to their injury or oppression,”

and that “among other essential rights the liberty of conscience and of

the press cannot be cancelled, abridged, restrained, or modified by any

authority of the United States.”

It cannot be disputed that the convention, by this acceptance,

understood and declared that there was thence but one nation; they

accept the government in behalf of the people of Virginia; they

acknowledge that the powers are derived from “the people of the United

States”; and add, if the government be perverted to the injury and

oppression of the _people_ of the _United States, they, the people of

the United States_, may resume the granted powers, not the people of

Virginia or the State of Virginia. If the convention understood that

they were making a _compact between States_ that were to retain

sovereignty, or the right to withdraw, it certainly would have said: if

the United States Government be perverted to the injury of the States,

then the State or sovereign State of Virginia or the people of the State

could resume the powers granted by her.

Clinton is one of the four persons whom Mr. Lodge cites as of the

opinion that the Union was a dissoluble, precarious, and temporary

affair. The letter of Madison to Hamilton--we have before mentioned--in

relation to the perpetuity of the Union and that there could be no

conditional acceptance, is well known to constitutional writers and

historians, and regarded as of the highest authority; but the more

emphatic and decisive declaration of the convention of New York, in its

circular-letter to the governors of the different States, signed by

Clinton, its President, and _ordered unanimously_, seems to have escaped

all notice. In that letter he and they state to the governor of each

State the ratification of the Constitution by New York and her

recommendation of certain amendments. He and they add, none of these

amendments originated in local views.

“Our attachment to our sister States, and the confidence we

repose in them, cannot be more forcibly demonstrated than by

acceding to a government which many of us think very imperfect,

and devolving the power of determining whether that government

shall be rendered _perpetual in its present form_ or altered

agreeably to our wishes and a minority of the States with whom

we unite.”[56]

[56] Circular-letter from the convention of New York to the governors

of the several States of the Union. Elliot’s _Debates_, vol. ii.,

pages 413, 414.

Can anything be more explicit that every one, everywhere, at that time

understood the Union was perpetual, than this unanimous address of the

convention of New York saying so to all the other States, and the

submissive request that they would amend the Constitution in accordance

with their wishes?

The conventions of Massachusetts, Virginia, and New York passed

resolutions recommending what they considered important necessary

amendments to the Constitution. These resolutions and the

recommendations of other States were considered in the first Congress,

and ten articles, commonly called the Bill of Rights, were passed, and

duly ratified by the legislatures of the States. These articles are

safeguards against the feared tyrannical grants that had been given, and

are all restrictive of the powers of the United States over its

citizens, not of its powers over States. They are: that the people

should have the right of petition; and “a well regulated militia being

necessary to the security of a free State, the right of the people to

keep and bear arms shall not be infringed.” This shows how deep and

serious the States believed the danger to be from the great powers of

the General Government with a standing army and navy.

Other amendments were, that no law should be passed abridging the

freedom of speech or of the press, or of trial by jury in suits at

common law where the amount involved exceeds twenty dollars; that there

should be no established religion, and matters of that kind. None of

these ten amendments give any powers to State governments. The final

clause reserves all the powers not granted, “to the _States_

respectively, or to the _people_,” not to the States and their people,

or the people of the respective States; but to the people, putting the

people as a whole.

Great stress has been laid by Calhoun and his followers on this clause,

as giving power to the States. As the United States Government’s

sovereignty is undoubtedly limited to the express grants of the

Constitution, the powers not granted are in the States or people. There

was no need of any reservation, except to allay the fears of those who

erroneously believed that the Constitution gave unlimited power to the

Union.

We have seen that in the discussions in the constitutional conventions

it was denied that any separate State ever had or exercised sovereign

powers. Judge Story, whose authority is as great as that of any legal

writer, in his commentaries on the Constitution maintains this doctrine.

Many of our earlier historians concur in this.

It is urged that originally we were one people of different colonies,

subjects of the British Kingdom; our independence of that kingdom and

existence as a power came from the declaration of the Congress of our

combined government, in which we are called one people. No State ever

acted separately in any sovereign capacity; we carried on the war, made

peace, and treated with foreign countries as one nation. Even territory

had been ceded to the Confederacy by the several States; and it was the

Confederacy that passed the ordinance of 1787 abolishing slavery in the

Northwest. The States had declared this Confederacy indissoluble.

Webster, as we have seen, did not found his argument on the ground that

the States never had sovereignty; he impliedly admitted the claimed

independence, or sovereignty of the States, before the forming of the

Union; it is safer to make this concession as Webster did. Each State

had its choice to join the Union or to remain apart and become an

independent sovereign power.

Our first chief-justice, John Jay, a most eminent jurist, a member of

the New York convention, and one of the writers of the _Federalist_, in

his decision in the case of Chisholm against the State of Georgia, where

Georgia denied that a State could be sued, very clearly states how our

government was formed and where the sovereignty is. He said: All the

people of our country were subjects, every acre of land was held by

grants from the Crown of Great Britain; the sovereignty passed from the

Crown to the people, and a confederation of States was established as

the basis of a general government. Then the people of the country made

a new government saying, “We, the people of the United States, do ordain

and establish this Constitution.” Every State constitution is a compact

between the citizens to govern themselves in a certain manner, and the

Constitution of the United States is likewise a compact made by the

people of the United States to govern themselves as to general objects

in a certain manner.[57]

[57] See 2 Dallas _Reports_, p. 471, for opinion in full.

It has often been asserted and apparently is generally believed, that in

the lapse of time the limited authority of the United States has been

gradually extended, national powers assumed, and the whole fabric of

government changed. An examination, however, of the laws passed by the

earliest Legislatures shows a very liberal construction of the granted

powers. Madison was a leader in the first Congress, he was through life

a strict constructionist of the extent of the powers given by the

Constitution. He informs us that no one doubted in that Congress that

the United States had the power of levying duties for protection.[58]

The want of such power was the very ground on which South Carolina

passed the nullification acts of 1832. The preamble of the law of the

first Congress, stating that the duties laid were for the encouragement

and protection of manufactures, we have already cited. The same act

made a discrimination in favor of imports of teas from China and India

direct in ships belonging to citizens of the United States, allowed a

drawback on dried and pickled fish and salted provisions in lieu of a

drawback on the salt used in them. In the third session of that first

Congress, an excise tax was laid on distilled spirits, and the Bank of

the United States was incorporated--because of its utility to the

government in the collection and transmitting of its revenue. Carriages

were taxed in 1794. To the charter of the bank and the carriage-tax

Madison and others objected as not within the granted powers. Also in

1794 sales of wines and liquors by retail and sales by auction were

taxed. And Madison himself introduced a bill to make a post-road through

the whole length of the States from Maine to Georgia.

[58] Madison’s letter to Jos. C. Cabell: Consideration No. 8.

4 Elliot, 602.

The suit before referred to against the State of Georgia,[59] under the

clause giving the United States Courts jurisdiction between a State and

citizens of another State, is another piece of contemporary history and

the strongest possible proof what was the understanding of that day.

Georgia was sued by a citizen of South Carolina in a simple action of

assumpsit, the legal term for a suit in which one would recover for the

cost of a pair of shoes or a day’s wages. Georgia refused to defend the

claim on the ground that she was a sovereign State.

[59] 2 Dallas _Reports_, 419.

The case came before the full bench of the Supreme Court, and was argued

for the plaintiff by Edmund Randolph, then Attorney-General, the

prominent member of the general convention and that of Virginia, who

stated his opinion strongly against this claim of Georgia. The decision

was against Georgia; Blair and Wilson, who were members of the

convention that made the Constitution, the Chief-Justice Jay, and

Cushing giving fully reasoned opinions. Iredell, a member of the North

Carolina Convention, gave a dissenting opinion; it was not because he

held that Georgia was a sovereign State as generally stated. He said as

to sovereignty: “The United States are sovereign as to all the powers of

government actually surrendered; each State in the Union is sovereign as

to all the powers reserved.” This same doctrine, as to the sovereignty

of a State in unsurrendered powers, was held by Marshall.[60]

[60] Providence Bank _vs._ Billings, 4 Peters, 514.

The reason of Iredell’s dissent was that before the adoption of the

Constitution a State could not be sued; that no suit now could be

brought against a State, because Congress had not made a law providing

for it. Further, he intimated it was not intended by the Constitution to

give the right of a compulsory suit against a State. As to the

sovereignty of the United States in the powers conferred to it, the

court was unanimous.

In the same suit, Jay and Cushing maintained that the United States

cannot be sued, a dictum since followed, though the Constitution gives

jurisdiction to the courts where the United States are a party.

At this time all the States were greatly indebted and many suits were

instituted against them, the United States Courts maintaining their

jurisdiction over the States. The alarm was general, and to quiet the

apprehension that was so extensively entertained, an amendment, taking

from the United States judicial power in suits against a State, was

adopted in Congress and afterwards ratified by the State Legislatures in

1798. That its motive was not to maintain the sovereignty of a State

from the degradation supposed to attend a compulsory appearance before

the tribunal of the nation may be inferred from the terms of the

amendment. It left jurisdiction to the United States of controversies to

which the United States shall be a party, of controversies between two

or more States, between citizens of different States, between citizens

of the same State claiming under grants of different States.[61]

[61] Chief-Justice Marshall’s remarks in Cohens _vs._ Virginia, 6

Wallace, 264.

Early in our history, in the second administration of Washington, a

formidable, armed, organized resistance was made to the enforcement of

the excise laws of the General Government in the western portion of

Pennsylvania, which extended into a part of Virginia. It was computed

that there were sixteen thousand men capable of bearing arms in the

district in insurrection. Washington called out the militia of several

of the States and, as Commander-in-chief, suppressed the revolt. The

march of the troops was fatiguing and long, late in the fall, in rain

and storms, which caused much suffering and, in the end, a good many

deaths. The insurrection was crushed by the power of the General

Government with promptness and vigor, much to the satisfaction of

Washington and Hamilton then Secretary of the Treasury; it strengthened

the government and the administration. Of the prisoners tried before the

United States Court at Philadelphia two were found guilty of treason,

who from some palliating circumstances were ultimately pardoned by the

President.[62]

[62] Hildreth’s _History_, vol. iv., p. 515.

We have seen what were the opinions of the nature of the new government

held by Hamilton, Mason, and Clinton, three of the persons Mr. Lodge

named. There can be no doubt what Washington’s was. No one knew better

than Washington, what a miserable condition the States, then petty in

population and poor in resources, would be without a strong,

indissoluble Union. Only one of the States, Virginia, had over half a

million of inhabitants, nearly half slaves; two had about sixty

thousand.

Washington, long before, on the disbanding of the army in 1783, wrote

to the governors of the States that, according to the policy the States

should adopt, depended whether the revolution was a blessing; and he put

“first” among the essential requisites “an indissoluble union of the

States under one federal head.”[63] In his address as president of the

convention submitting the Constitution to the Congress of the States, he

said: “In all our deliberations on this subject we kept steadily in our

view that which appeared to us the greatest interest of every true

American, _the consolidation of the Union_, in which is involved our

prosperity, felicity, safety, perhaps our _national_ existence.” In his

farewell address, as President, to the people of the United States, in

no less emphatic terms, he declared the importance and the success of

the Union. He said: “The _unity of Government_, which constitutes _you

one people_, is also now dear to you; it is justly so, for it is a main

pillar in the edifice of your real independence--the support of your

tranquillity at home, your peace abroad; of your safety; of your

prosperity; of that very liberty which you so highly prize.”[64]

[63] Eliot’s _Manual of United States History_, 266.

[64] Sparks’ _Washington_, vol. xii., p. 214.

We have before stated, that at the institution of our government there

was a great fear on the part of a portion of the people of its

consolidation and the extension of its granted powers over those

reserved to the States and people. It was not however until the

administration of John Adams, about ten years after the government had

gone into operation, that the power of a State to pass judgment on the

validity of the acts of the United States was suggested. Those who had

elected Adams as President called themselves Federalists, and, as is

natural in those controlling the government, were in favor of a liberal

construction of its powers. The name federal, taking its Latin

derivation, refers to a bond uniting states; that bond may be, however,

that of a confederacy or of a nation. Perhaps it was a misnomer for the

party in favor of a broad national construction of the Constitution. The

name has come into use, however, as descriptive of our government; it is

very generally called the Federal Government. The proposed uniting of

states, like the British colonies in the Pacific, is spoken of as

federal. Indeed there is no substantial objection to terming any sort of

government made by a constitution or agreement federal.

The party, at that time of our history, in opposition to the Federal,

and who were in favor of a strict construction of the Constitution,

called themselves by the national name of Republicans. When, however,

they came into power under Jefferson, they were no longer strict

constructionists.

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