The Rise and Fall of the Confederate Government Volume I Part 11

The artist, who wrote under his picture the legend "This is a horse," made effectual provision against any such cavil as that preferred by Mr. Webster and his followers, that the Const.i.tution is not a compact, because it is not "so nominated in the bond." As well as I can recollect, there is no pa.s.sage in the "Iliad" or the "aeneid" in which either of those great works "calls itself," or is called by its author, an epic poem, yet this would scarcely be accepted as evidence that they are not epic poems. In an examination of Mr. Webster's remarks, I do not find that he announces them to be either a speech or an argument; yet their claim to both these t.i.tles will hardly be disputed-notwithstanding [pg 136] the verbal criticism on the Const.i.tution just quoted.

The distinction attempted to be drawn between the language proper to a confederation and that belonging to a const.i.tution, as indicating two different ideas, will not bear the test of examination and application to the case of the United States. It has been fully shown, in previous chapters, that the terms "Union," "Federal Union," "Federal Const.i.tution," "Const.i.tution of the Federal Government," and the like, were used-not merely in colloquial, informal speech, but in public proceedings and official doc.u.ments-with reference to the Articles of Confederation, as freely as they have since been employed under the present Const.i.tution. The former Union was-as Mr. Webster expressly admits-as n.o.body denies-a compact between States, yet it nowhere "calls itself" "a compact"; the word does not occur in it even the one time that it occurs in the present Const.i.tution, although the contracting States are in both prohibited from entering into any "treaty, confederation, or alliance" with one another, or with any foreign power, without the consent of Congress; and the contracting or const.i.tuent parties are termed "United States" in the one just as in the other.

Mr. Webster is particularly unfortunate in his criticisms upon what he terms the "new vocabulary," in which the Const.i.tution is styled a compact, and the States which ratified it are spoken of as having "acceded" to it. In the same speech, last quoted, he says:

"This word 'accede,' not found either in the Const.i.tution itself or in the ratification of it by any one of the States, has been chosen for use here, doubtless not without a well-considered purpose. The natural converse of accession is secession; and therefore, when it is stated that the people of the States acceded to the Union, it may be more plausibly argued that they may secede from it. If, in adopting the Const.i.tution, nothing was done but acceding to a compact, nothing would seem necessary, in order to break it up, but to secede from the same compact. But the term is wholly out of place. Accession, as a word applied to political a.s.sociations, implies coming into a league, treaty, or confederacy, by one hitherto a stranger to it; and secession implies departing from such [pg 137] league or confederacy. The people of the United States have used no such form of expression in establishing the present Government."55

Repeating and reiterating in many forms what is substantially the same idea, and attributing the use of the terms which he attacks to an ulterior purpose, Mr. Webster says:

"This is the reason, sir, which makes it necessary to abandon the use of const.i.tutional language for a new vocabulary, and to subst.i.tute, in the place of plain, historical facts, a series of a.s.sumptions. This is the reason why it is necessary to give new names to things; to speak of the Const.i.tution, not as a const.i.tution, but as a compact; and of the ratifications by the people, not as ratifications, but as acts of accession."56

In these and similar pa.s.sages, Mr. Webster virtually concedes that, if the Const.i.tution were a compact; if the Union were a confederacy; if the States had, as States, severally acceded to it-all which propositions he denies-then the sovereignty of the States and their right to secede from the Union would be deducible.

Now, it happens that these very terms-"compact," "confederacy," "accede," and the like-were the terms in familiar use by the authors of the Const.i.tution and their a.s.sociates with reference to that instrument and its ratification. Other writers, who have examined the subject since the late war gave it an interest which it had never commanded before, have collected such an array of evidence in this behalf that it is necessary only to cite a few examples.

The following language of Mr. Gerry, of Ma.s.sachusetts, in the Convention of 1787, has already been referred to: "If nine out of thirteen States can dissolve the compact, six out of nine will be just as able to dissolve the new one hereafter."

Mr. Gouverneur Morris, one of the most p.r.o.nounced advocates of a strong central government, in the Convention, said: "He came here to form a compact for the good of Americans. He was ready to do so with all the States. He hoped and believed [pg 138] they all would enter into such a compact. If they would not, he would be ready to join with any States that would. But, as the compact was to be voluntary, it is in vain for the Eastern States to insist on what the Southern States will never agree to."57

Mr. Madison, while inclining to a strong government, said: "In the case of a union of people under one Const.i.tution, the nature of the pact has always been understood," etc.58

Mr. Hamilton, in the "Federalist," repeatedly speaks of the new government as a "confederate republic" and a "confederacy," and calls the Const.i.tution a "compact." (See especially Nos. IX. and Lx.x.xV.)

General Washington-who was not only the first President under the new Const.i.tution, but who had presided over the Convention that drew it up-in letters written soon after the adjournment of that body to friends in various States, referred to the Const.i.tution as a compact or treaty, and repeatedly uses the terms "accede" and "accession," and once the term "secession."

He asks what the opponents of the Const.i.tution in Virginia would do, "if nine other States should accede to the Const.i.tution."

Luther Martin, of Maryland, informs us that, in a committee of the General Convention of 1787, protesting against the proposed violation of the principles of the "perpetual union" already formed under the Articles of Confederation, he made use of such language as this:

"Will you tell us we ought to trust you because you now enter into a solemn compact with us? This you have done before, and now treat with the utmost contempt. Will you now make an appeal to the Supreme Being, and call on Him to guarantee your observance of this compact? The same you have formerly done for your observance of the Articles of Confederation, which you are now violating in the most wanton manner."59

It is needless to multiply the proofs that abound in the writings of the "fathers" to show that Mr. Webster's "new vocabulary" [pg 139] was the very language they familiarly used. Let two more examples suffice, from authority higher than that of any individual speaker or writer, however eminent-from authority second only, if at all inferior, to that of the text of the Const.i.tution itself-that is, from the acts or ordinances of ratification by the States. They certainly ought to have been conclusive, and should not have been unknown to Mr. Webster, for they are the language of Ma.s.sachusetts, the State which he represented in the Senate, and of New Hampshire, the State of his nativity.

The ratification of Ma.s.sachusetts is expressed in the following terms:

"COMMONWEALTH OF Ma.s.sACHUSETTS.

"The Convention, having impartially discussed and fully considered a Const.i.tution for the United States of America, reported to Congress by the convention of delegates from the United States of America, and submitted to us by a resolution of the General Court of the said Commonwealth, pa.s.sed the 25th day of October last past, and 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 a.s.senting to and ratifying a new Const.i.tution, in order to form a more perfect Union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to themselves and their posterity-do, in the name and in behalf of the people of the Commonwealth of Ma.s.sachusetts, a.s.sent to and ratify the said Const.i.tution for the United States of America."

The ratification of New Hampshire is expressed in precisely the same words, save only the difference of date of the resolution of the Legislature (or "General Court") referred to, and also the use of the word "State" instead of "Commonwealth." Both distinctly accept it as a compact of the States "with each other"-which Mr. Webster, a son of New Hampshire and a Senator from Ma.s.sachusetts, declared it was not; and not only [pg 140] so, but he repudiated the very "vocabulary" from which the words expressing the doctrine were taken.

It would not need, however, this abounding wealth of contemporaneous exposition-it does not require the employment of any particular words in the Const.i.tution-to prove that it was drawn up as a compact between sovereign States entering into a confederacy with each other, and that they ratified and acceded to it separately, severally, and independently. The very structure of the whole instrument and the facts attending its preparation and ratification would suffice. The language of the final article would have been quite enough: "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." This is not the "language" of a superior imposing a mandate upon subordinates. The consent of the contracting parties is necessary to its validity, and then it becomes not the acceptance and recognition of an authority "over" them-as Mr. Motley represents-but of a compact between them. The simple word "between" is incompatible with any other idea than that of a compact by independent parties.

If it were possible that any doubt could still exist, there is one provision in the Const.i.tution which stamps its character as a compact too plainly for cavil or question. The Const.i.tution, which had already provided for the representation of the States in both Houses of Congress, thereby bringing the matter of representation within the power of amendment, in its fifth article contains a stipulation that "no State, without its [own] consent, shall be deprived of its equal suffrage in the Senate." If this is not a compact between the States, the smaller States have no guarantee for the preservation of their equality of representation in the United States Senate. If the obligation of a contract does not secure it, the guarantee itself is liable to amendment, and may be swept away at the will of three fourths of the States, without wrong to any party-for, according to this theory, there is no party of the second part.

Footnote 52: (return) Gales and Seaton's "Register of Congressional Debates," vol. vi, Part I, p. 93.

Footnote 53: (return) The words "with another State or with a foreign power" should have been added to make this statement accurate.

Footnote 54: (return) "Congressional Debates," vol. ix, Part I, p. 563.

Footnote 55: (return) "Congressional Debates," vol. ix, Part I, p. 566.

Footnote 56: (return) Ibid., pp. 557, 558.

Footnote 57: (return) "Madison Papers," pp. 1081, 1082.

Footnote 58: (return) Ibid., p. 1184.

Footnote 59: (return) Luther Martin's "Genuine Information," in Wilbur Curtiss's "Secret Proceedings and Debates of the Convention," p. 29.

[pg 141]

CHAPTER VIII.

Sovereignty.

"The term 'sovereign' or 'sovereignty,'" says Judge Story, "is used in different senses, which often leads to a confusion of ideas, and sometimes to very mischievous and unfounded conclusions." Without any disrespect for Judge Story, or any disparagement of his great learning and ability, it may safely be added that he and his disciples have contributed not a little to the increase of this confusion of ideas and the spread of these mischievous and unfounded conclusions. There is no good reason whatever why it should be used in different senses, or why there should be any confusion of ideas as to its meaning. Of all the terms employed in political science, it is one of the most definite and intelligible. The definition of it given by that accurate and lucid publicist, Burlamaqui, is simple and satisfactory-that "sovereignty is a right of commanding in the last resort in civil society."60 The original seat of this sovereignty he also declares to be in the people. "But," he adds, "when once the people have transferred their right to a sovereign [i.e., a monarch], they can not, without contradiction, be supposed to continue still masters of it."61 This is in strict accord with the theory of American republicanism, the peculiarity of which is that the people never do transfer their right of sovereignty, either in whole or in part. They only delegate to their governments the exercise of such of its functions as may be necessary, subject always to their own control, and to rea.s.sumption whenever such government fails to fulfill the purposes for which it was inst.i.tuted.

I think it has already been demonstrated that, in this country, the only political community-the only independent corporate unit through which the people can exercise their sovereignty, is the State. Minor communities-as those of counties, cities, and towns-are merely fractional subdivisions of the [pg 142] State; and these do not affect the evidence that there was not such a political community as the "people of the United States in the aggregate."

That the States were severally sovereign and independent when they were united under the Articles of Confederation, is distinctly a.s.serted in those articles, and is admitted even by the extreme partisans of consolidation. Of right, they are still sovereign, unless they have surrendered or been divested of their sovereignty; and those who deny the proposition have been vainly called upon to point out the process by which they have divested themselves, or have been divested of it, otherwise than by usurpation.

Since Webster spoke and Story wrote upon the subject, however, the sovereignty of the States has been vehemently denied, or explained away as only a partial, imperfect, mutilated sovereignty. Paradoxical theories of "divided sovereignty" and "delegated sovereignty" have arisen, to create that "confusion of ideas" and engender those "mischievous and unfounded conclusions," of which Judge Story speaks. Confounding the sovereign authority of the people with the delegated powers conferred by them upon their governments, we hear of a Government of the United States "sovereign within its sphere," and of State governments "sovereign in their sphere"; of the surrender by the States of part of their sovereignty to the United States, and the like. Now, if there be any one great principle pervading the Federal Const.i.tution, the State Const.i.tutions, the writings of the fathers, the whole American system, as clearly as the sunlight pervades the solar system, it is that no government is sovereign-that all governments derive their powers from the people, and exercise them in subjection to the will of the people-not a will expressed in any irregular, lawless, tumultuary manner, but the will of the organized political community, expressed through authorized and legitimate channels. The founders of the American republics never conferred, nor intended to confer, sovereignty upon either their State or Federal Governments.

If, then, the people of the States, in forming a Federal Union, surrendered-or, to use Burlamaqui's term, transferred-or [pg 143] if they meant to surrender or transfer-part of their sovereignty, to whom was the transfer made? Not to "the people of the United States in the aggregate"; for there was no such people in existence, and they did not create or const.i.tute such a people by merger of themselves. Not to the Federal Government; for they disclaimed, as a fundamental principle, the sovereignty of any government. There was no such surrender, no such transfer, in whole or in part, expressed or implied. They retained, and intended to retain, their sovereignty in its integrity-undivided and indivisible.

"But, indeed," says Mr. Motley, "the words 'sovereign' and 'sovereignty' are purely inapplicable to the American system. In the Declaration of Independence the provinces declare themselves 'free and independent States,' but the men of those days knew that the word 'sovereign' was a term of feudal origin. When their connection with a time-honored feudal monarchy was abruptly severed, the word 'sovereign' had no meaning for us."62

If this be true, "the men of those days" had a very extraordinary way of expressing their conviction that the word "had no meaning for us." We have seen that, in the very front of their Articles of Confederation, they set forth the conspicuous declaration that each State retained "its sovereignty, freedom, and independence."

Ma.s.sachusetts-the State, I believe, of Mr. Motley's nativity and citizenship-in her original Const.i.tution, drawn up by "men of those days," made this declaration:

"The people inhabiting the territory formerly called the Province of Ma.s.sachusetts Bay do hereby solemnly and mutually agree with each other to form themselves into a free, sovereign, and independent body politic, or State, by the name of The Commonwealth of Ma.s.sachusetts."

New Hampshire, in her Const.i.tution, as revised in 1792, had identically the same declaration, except as regards the name of the State and the word "State" instead of "Commonwealth."

Mr. Madison, one of the most distinguished of the men of [pg 144] that day and of the advocates of the Const.i.tution, in a speech already once referred to, in the Virginia Convention of 1788, explained that "We, the people," who were to establish the Const.i.tution, were the people of "thirteen SOVEREIGNTIES."63

In the "Federalist," he repeatedly employs the term-as, for example, when he says: "Do they [the fundamental principles of the Confederation] require that, in the establishment of the Const.i.tution, the States should be regarded as distinct and independent SOVEREIGNS? They are so regarded by the Const.i.tution proposed."64

Alexander Hamilton-another contemporary authority, no less ill.u.s.trious-says, in the "Federalist":

"It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union."65

In the same paragraph he uses these terms, "sovereign" and "sovereignty," repeatedly-always with reference to the States, respectively and severally.

Benjamin Franklin advocated equality of suffrage in the Senate as a means of securing "the sovereignties of the individual States."66 James Wilson, of Pennsylvania, said sovereignty "is in the people before they make a Const.i.tution, and remains in them," and described the people as being "thirteen independent sovereignties."67 Gouverneur Morris, who was, as well as Wilson, one of the warmest advocates in the Convention of a strong central government, spoke of the Const.i.tution as "a compact," and of the parties to it as "each enjoying sovereign power."68 Roger Sherman, of Connecticut, declared that the Government "was inst.i.tuted by a number of sovereign States."69 [pg 145] Oliver Ellsworth, of the same State, spoke of the States as "sovereign bodies."70 These were all eminent members of the Convention which formed the Const.i.tution.

There was scarcely a statesman of that period who did not leave on record expressions of the same sort. But why multiply citations? It is very evident that the "men of those days" entertained very different views of sovereignty from those set forth by the "new lights" of our day. Far from considering it a term of feudal origin, "purely inapplicable to the American system," they seem to have regarded it as a very vital principle in that system, and of necessity belonging to the several States-and I do not find a single instance in which they applied it to any political organization, except the States.