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.