The Rise and Fall of the Confederate Government Volume I Part 10

We need go no further than to the familiar language of King James's translation of the Bible for multiplied ill.u.s.trations of this indiscriminate use of the term, both in its collective and distributive senses. For example, King Solomon prays at the dedication of the temple:

"That thine eyes may be open unto the supplication ... of thy people Israel, to hearken unto them in all that they call for unto thee. For thou didst separate them from among all the people of the earth, to be thine inheritance." (1 Kings viii, 52, 53.)

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Here we have both the singular and plural senses of the same word-one people, Israel, and all the people of the earth-in two consecutive sentences. In "the people of the earth," the word people is used precisely as it is in the expression "the people of the United States" in the preamble to the Const.i.tution, and has exactly the same force and effect. If in the latter case it implies that the people of Ma.s.sachusetts and those of Virginia were mere fractional parts of one political community, it must in the former imply a like unity among the Philistines, the Egyptians, the a.s.syrians, Babylonians, and Persians, and all other "people of the earth," except the Israelites. Scores of examples of the same sort might be cited if it were necessary.42

In the Declaration of Independence we find precisely a.n.a.logous instances of the employment of the singular form for both singular and plural senses-"one people," "a free people," in the former, and "the good people of these colonies" in the latter. Judge Story, in the excess of his zeal in behalf of a theory of consolidation, bases upon this last expression the conclusion that the a.s.sertion of independence was the act of "the whole people of the united colonies" as a unit; overlooking or suppressing the fact that, in the very same sentence, the colonies declare themselves "free and independent States"-not a free and independent state-repeating the words "independent States" three times.

If, however, the Declaration of Independence const.i.tuted one "whole people" of the colonies, then that geographical section of it, formerly known as the colony of Maryland, was in a state of revolt or "rebellion" against the others, as well as against Great Britain, from 1778 to 1781, during which period Maryland refused to ratify or be bound by the Articles of Confederation, which, according to this theory, was binding upon her, as a majority of the "whole people" had adopted it. A fortiori, North Carolina and Rhode Island were in a state of rebellion in 1789-'90, while they declined to ratify and recognize the Const.i.tution adopted by the other eleven fractions of this united people. Yet no hint of any such pretension-of [pg 127] any claim of authority over them by the majority-of any a.s.sertion of "the supremacy of the Union"-is to be found in any of the records of that period.

It might have been unnecessary to bestow so much time and attention in exposing the absurdity of the deductions from a theory so false, but for the fact that it has been specious enough to secure the countenance of men of such distinction as Webster, Story, and Everett; and that it has been made the plea to justify a b.l.o.o.d.y war against that principle of State sovereignty and independence, which was regarded by the fathers of the Union as the corner-stone of the structure and the basis of the hope for its perpetuity.

Footnote 38: (return) Elliott's "Debates" (Washington edition, 1836), vol. iii, p. 54.

Footnote 39: (return) Ibid., p. 72.

Footnote 40: (return) Elliott's "Debates" (Washington edition, 1836), vol. iii, pp. 114, 115.

Footnote 41: (return) Journal of the Federal Convention, May 29, 1787, 1 Elliott's "Debates."

Footnote 42: (return) For a very striking ill.u.s.tration, see Deuteronomy vii, 6, 7.

CHAPTER VI.

The Preamble to the Const.i.tution-subject continued.-Growth of the Federal Government and Accretions of Power.-Revival of Old Errors.-Mistakes and Misstatements.-Webster, Story, and Everett.-Who "ordained and established" the Const.i.tution?

In the progressive growth of the Government of the United States in power, splendor, patronage, and consideration abroad, men have been led to exalt the place of the Government above that of the States which created it. Those who would understand the true principles of the Const.i.tution can not afford to lose sight of the essential plurality of idea invariably implied in the term "United States," wherever it is used in that instrument. No such unit as the United States is ever mentioned therein. We read that "no t.i.tle of n.o.bility shall be granted by the United States, and no person holding any office of profit or trust under them shall, without the consent of Congress, accept," etc.43 "The President ... shall not receive, within that period, any other emolument from the United States, or any of them."44 "The laws of the United States, and treaties made or which shall be made under their authority," etc.45 "Treason [pg 128] against the United States shall consist only in levying war against them, or in adhering to their enemies."46 The Federal character of the Union is expressed by this very phraseology, which recognizes the distinct integrity of its members, not as fractional parts of one great unit, but as component units of an a.s.sociation. So clear was this to contemporaries, that it needed only to be pointed out to satisfy their scruples. We have seen how effectual was the answer of Mr. Madison to the objections raised by Patrick Henry. Mr. Tench c.o.xe, of Pennsylvania, one of the ablest political writers of his generation, in answering a similar objection, said: "If the Federal Convention had meant to exclude the idea of 'union'-that is, of several and separate sovereignties joining in a confederacy-they would have said, 'We, the people of America'; for union necessarily involves the idea of competent States, which complete consolidation excludes."47

More than forty years afterward, when the gradual accretions to the power, prestige, and influence of the central Government had grown to such extent as to begin to hide from view the purposes for which it was founded, those very objections, which in the beginning had been answered, abandoned, and thrown aside, were brought to light again, and presented to the country as expositions of the true meaning of the Const.i.tution. Mr. Webster, one of the first to revive some of those early misconceptions so long ago refuted as to be almost forgotten, and to breathe into them such renewed vitality as his commanding genius could impart, in the course of his well-known debate in the Senate with Mr. Hayne, in 1830, said:

"It can not be shown that the Const.i.tution is a compact between State governments. The Const.i.tution itself, in its very front, refutes that proposition: it declares that it is ordained and established by the people of the United States. So far from saying that it is established by the governments of the several States, it does not even say that it is established by the people of the several States; but it p.r.o.nounces that it is established by the people of the United States in the aggregate."48

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Judge Story about the same time began to advance the same theory, but more guardedly and with less rashness of statement. It was not until thirty years after that it attained its full development in the annunciations of sectionists rather than statesmen. Two such may suffice as specimens:

Mr. Edward Everett, in his address delivered on the 4th of July, 1861, and already referred to, says of the Const.i.tution: "That instrument does not purport to be a 'compact,' but a const.i.tution of government. It appears, in its first sentence, not to have been entered into by the States, but to have been ordained and established by the people of the United States for themselves and their 'posterity.' The States are not named in it; nearly all the characteristic powers of sovereignty are expressly granted to the General Government and expressly prohibited to the States."49 Mr. Everett afterward repeats the a.s.sertion that "the States are not named in it."50

But a yet more extraordinary statement of the "one people" theory is found in a letter addressed to the London "Times," in the same year, 1861, on the "Causes of the Civil War," by Mr. John Lothrop Motley, afterward Minister to the Court of St. James. In this letter Mr. Motley says of the Const.i.tution of the United States:

"It was not a compact. Who ever heard of a compact to which there were no parties? or who ever heard of a compact made by a single party with himself? Yet the name of no State is mentioned in the whole doc.u.ment; the States themselves are only mentioned to receive commands or prohibitions; and the 'people of the United States' is the single party by whom alone the instrument is executed.

"The Const.i.tution was not drawn up by the States, it was not promulgated in the name of the States, it was not ratified by the States. The States never acceded to it, and possess no power to secede from it. It was 'ordained and established' over the States by a power superior to the States; by the people of the whole land in their aggregate capacity," etc.

It would be very hard to condense a more amazing amount [pg 130] of audacious and reckless falsehood in the same s.p.a.ce. In all Mr. Motley's array of bold a.s.sertions, there is not one single truth-unless it be, perhaps, that "the Const.i.tution was not drawn up by the States." Yet it was drawn up by their delegates, and it is of such material as this, derived from writers whose reputation gives a semblance of authenticity to their statements, that history is constructed and transmitted.

One of the most remarkable-though, perhaps, the least important-of these misstatements is that which is also twice repeated by Mr. Everett-that the name of no State is mentioned in the whole doc.u.ment, or, as he puts it, "the States are not named in it." Very little careful examination would have sufficed to find, in the second section of the very first article of the Const.i.tution, the names of every one of the thirteen then existent States distinctly mentioned, with the number of representatives to which each would be ent.i.tled, in case of acceding to the Const.i.tution, until a census of their population could be taken. The mention there made of the States by name is of no special significance; it has no bearing upon any question of principle; and the denial of it is a purely gratuitous ill.u.s.tration of the recklessness of those from whom it proceeds, and the low estimate put on the intelligence of those addressed. It serves, however, to show how much credence is to be given to their authority as interpreters and expounders.

The reason why the names of the ratifying States were not mentioned has already been given: it was simply because it was not known which States would ratify. But, as regards mention of "the several States," "each State," "any State," "particular States," and the like, the Const.i.tution is full of it. I am informed, by one who has taken the pains to examine carefully that doc.u.ment with reference to this very point, that-without including any mention of "the United States" or of "foreign states," and excluding also the amendments-the Const.i.tution, in its original draft, makes mention of the States, as States, no less than seventy times; and of these seventy times, only three times in the way of prohibition of the exercise of a power. In fact, it is full of statehood. Leave out all mention of the States-I make no mere verbal point or quibble, but [pg 131] mean the States in their separate, several, distinct capacity-and what would remain would be of less account than the play of the Prince of Denmark with the part of Hamlet omitted.

But, leaving out of consideration for the moment all minor questions, the vital and essential point of inquiry now is, by what authority the Const.i.tution was "ordained and established." Mr. Webster says it was done "by the people of the United States in the aggregate;" Mr. Everett repeats substantially the same thing; and Mr. Motley, taking a step further, says that "it was 'ordained and established' by a power superior to the States-by the people of the whole land in their aggregate capacity."

The advocates of this mischievous dogma a.s.sume the existence of an unauthorized, undefined power of a "whole people," or "people of the whole land," operating through the agency of the Philadelphia Convention, to impose its decrees upon the States. They forget, in the first place, that this Convention was composed of delegates, not of any one people, but of distinct States; and, in the second place, that their action had no force or validity whatever-in the words of Mr. Madison, that it was of no more consequence than the paper on which it was written-until approved and ratified by a sufficient number of States. The meaning of the preamble, "We, the people of the United States ... do ordain and establish this Const.i.tution," is ascertained, fixed, and defined by the final article: "The ratification of the conventions of nine States shall be sufficient for the establishment of this Const.i.tution between the States so ratifying the same." If it was already established, what need was there of further establishment? It was not ordained or established at all, until ratified by the requisite number of States. The announcement in the preamble of course had reference to that expected ratification, without which the preamble would have been as void as the body of the instrument. The a.s.sertion that "it was not ratified by the States" is so plainly and positively contrary, to well-known fact-so inconsistent with the language of the Const.i.tution itself-that it is hard to imagine what was intended by it, unless it was to take advantage of the presumed ignorance of the subject among [pg 132] the readers of an English journal, to impose upon them, a preposterous fiction. It was State ratification alone-the ratification of the people of each State, independently of all other people-that gave force, vitality, and validity to the Const.i.tution.

Judge Story, referring to the fact that the voters a.s.sembled in the several States, asks where else they could have a.s.sembled-a pertinent question on our theory, but the idea he evidently intended to convey was that the voting of "the people" by States was a mere matter of geographical necessity, or local convenience; just as the people of a State vote by counties; the people of a county by towns, "beats," or "precincts"; and the people of a city by wards. It is hardly necessary to say that, in all organized republican communities, majorities govern. When we speak of the will of the people of a community, we mean the will of a majority, which, when const.i.tutionally expressed, is binding on any minority of the same community.

If, then, we can conceive, and admit for a moment, the possibility that, when the Const.i.tution was under consideration, the people of the United States were politically "one people"-a collective unit-two deductions are clearly inevitable: In the first place, each geographical division of this great community would have been ent.i.tled to vote according to its relative population; and, in the second, the expressed will of the legal majority would have been binding upon the whole. A denial of the first proposition would be a denial of common justice and equal rights; a denial of the second would be to destroy all government and establish mere anarchy.

Now, neither of these principles was practiced or proposed or even imagined in the case of the action of the people of the United States (if they were one political community) upon the proposed Const.i.tution. On the contrary, seventy thousand people in the State of Delaware had precisely the same weight-one vote-in its ratification, as seven hundred thousand (and more) in Virginia, or four hundred thousand in Pennsylvania. Would not this have been an intolerable grievance and wrong-would no protest have been uttered against it-if these had been fractional parts of one community of people?

Again, while the will of the consenting majority within any [pg 133] State was binding on the opposing minority in the same, no majority, or majorities, of States or people had any control whatever upon the people of another State. The Const.i.tution was established, not "over the States," as a.s.serted by Motley, but "between the States," and only "between the States so ratifying the same." Little Rhode Island, with her seventy thousand inhabitants, was not a mere fractional part of "the people of the whole land," during the period for which she held aloof, but was as free, independent, and unmolested, as any other sovereign power, notwithstanding the majority of more than three millions of "the whole people" on the other side of the question.

Before the ratification of the Const.i.tution-when there was some excuse for an imperfect understanding or misconception of the terms proposed-Mr. Madison thus answered, in advance, the objections made on the ground of this misconception, and demonstrated its fallacy. He wrote:

"That it will be a federal and not a national act, as these terms are understood by objectors-the act of the people, as forming so many independent States, not as forming one aggregate nation-is obvious from this single consideration, that it is to result neither from the decision of a majority of the people of the Union nor from that of a majority of the States. It must result from the unanimous a.s.sent of the several States that are parties to it, differing no otherwise from their ordinary a.s.sent than in its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these has been adopted. Each State, in ratifying the Const.i.tution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act."51

It is a tedious task to have to expose the misstatements, both [pg 134] of fact and of principle, which have occupied so much attention, but it is rendered necessary by the extent to which they have been imposed upon the acceptance of the public, through reckless a.s.sertion and confident and incessant repet.i.tion.

"'I remember,' says Mr. Webster, 'to have heard Chief-Justice Marshall ask counsel, who was insisting upon the authority of an act of legislation, if he thought an act of legislation could create or destroy a fact, or change the truth of history? "Would it alter the fact," said he, "if a Legislature should solemnly enact that Mr. Hume never wrote the History of England?" A Legislature may alter the law,' continues Mr. Webster, 'but no power can reverse a fact.' Hence, if the Convention of 1787 had expressly declared that the Const.i.tution was [to be] ordained by 'the people of the United States in the aggregate,' or by the people of America as one nation, this would not have destroyed the fact that it was ratified by each State for itself, and that each State was bound only by 'its own voluntary act.'" (Bledsoe.)

But the Convention, as we have seen, said no such thing. No such community as "the people of the United States in the aggregate" is known to it, or ever acted on it. It was ordained, established, and ratified by the people of the several States; and no theories or a.s.sertions of a later generation can change or conceal this fixed fact, as it stands revealed in the light of contemporaneous records.

Footnote 43: (return) Article I, section 9, clause 8.

Footnote 44: (return) Article II, section 1, clause 6.

Footnote 45: (return) Article III, section 2.

Footnote 46: (return) Article III, section 3.

Footnote 47: (return) "American Museum," February, 1788.

Footnote 48: (return) Benton's "Abridgment," vol. x, p. 448.

Footnote 49: (return) See address by Edward Everett at the Academy of Music, New York, July 4, 1861.

Footnote 50: (return) Ibid.

Footnote 51: (return) "Federalist," No. x.x.xix.

CHAPTER VII.

Verbal Cavils and Criticisms.-"Compact," "Confederacy," "Accession," etc.-The "New Vocabulary."-The Federal Const.i.tution a Compact, and the States acceded to it.-Evidence of the Const.i.tution itself and of Contemporary Records.

I have habitually spoken of the Federal Const.i.tution as a compact, and of the parties to it as sovereign States. These terms should not, and in earlier times would not, have required explanation or vindication. But they have been called in question by the modern school of consolidation. These gentlemen [pg 135] admit that the Government under the Articles of Confederation was a compact. Mr. Webster, in his rejoinder to Mr. Hayne, on the 27th of January, 1830, said:

"When the gentleman says the Const.i.tution is a compact between the States, he uses language exactly applicable to the old Confederation. He speaks as if he were in Congress before 1789. He describes fully that old state of things then existing. The Confederation was, in strictness, a compact; the States, as States, were parties to it. We had no other General Government. But that was found insufficient and inadequate to the public exigencies. The people were not satisfied with it, and undertook to establish a better. They undertook to form a General Government, which should stand on a new basis-not a confederacy, not a league, not a compact between States, but a Const.i.tution."52

Again, in his discussion with Mr. Calhoun, three years afterward, he vehemently reiterates the same denial. Of the Const.i.tution, he says: "Does it call itself a compact? Certainly not. It uses the word 'compact' but once, and that when it declares that the States shall enter into no compact.53 Does it call itself a league, a confederacy, a subsisting treaty between the States? Certainly not. There is not a particle of such language in all its pages."54