Sovereignty, under God, inheres in the organic people, or the people as the republic; and every organic people fixed to the soil, and politically independent of every other people, is a sovereign people, and, in the modern sense, an independent sovereign nation.
Sovereign states may unite in an alliance, league, or confederation, and mutually agree to exercise their sovereign powers or a portion of them in common, through a common organ or agency; but in this agreement they part with none of their sovereignty, and each remains a sovereign state or nation as before. The common organ or agency created by the convention is no state, is no nation, has no inherent sovereignty, and derives all its vitality and force from the persisting sovereignty of the states severally that have united in creating it. The agreement no more affects the sovereignty of the several states entering into it, than does the appointment of an agent affect the rights and powers of the principal. The creature takes nothing from the Creator, exhausts not, lessens not his creative energy, and it is only by his retaining and continuously exerting his creative power that the creature continues to exist.
An independent state or nation may, with or without its consent, lose its sovereignty, but only by being merged in or subjected to another. Independent sovereign states cannot by convention, or mutual agreement, form themselves into a single sovereign state, or nation. The compact, or agreement, is made by sovereign states, and binds by virtue of the sovereign power of each of the contracting parties. To destroy that sovereign power would be to annul the compact, and render void the agreement. The agreement can be valid and binding only on condition that each of the contracting parties retains the sovereignty that rendered it competent to enter into the compact, and states that retain severally their sovereignty do not form a single sovereign state or nation. The states in convention cannot become a new and single sovereign state, unless they lose their several sovereignty, and merge it in the new sovereignty; but this they cannot do by agreement, because the moment the parties to the agreement cease to be sovereign, the agreement, on which alone depends the new sovereign state, is vacated, in like manner as a contract is vacated by the death of the contracting parties.
That a nation may voluntarily cede its sovereignty is frankly admitted, but it can cede it only to something or somebody actually existing, for to cede to nothing and not to cede is one and the same thing. They can part with their own sovereignty by merging themselves in another national existence, but not by merging themselves in nothing; and, till they have parted with their own sovereignty, the new sovereign state does not exist. A prince can abdicate his power, because by abdicating he simply gives back to the people the trust he had received from them; but a nation cannot, save by merging itself in another. An independent state not merged in another, or that is not subject to another, cannot cease to be a sovereign nation, even if it would.
That no sovereign state can be formed by agreement or compact has already been shown in the refutation of the theory of the origin of government in convention, or the so-called social compact. Sovereign states are as unable to form themselves into a single sovereign state by mutual compact as are the sovereign individuals imagined by Rousseau. The convention, either of sovereign states or of sovereign individuals, with the best will in the world, can form only a compact or agreement between sovereigns, and an agreement or compact, whatever its terms or conditions, is only an alliance, a league, or a confederation, which no one can pretend is a sovereign state, nation, or republic.
The question, then, whether the United States are a single sovereign state or nation, or a confederacy of independent sovereign states depends on the question whether the American people originally existed as one people or as several independent states. Mr. Jefferson maintains that before the convention of 1787 they existed as several independent sovereign states, but that since that convention, or the ratification of the constitution it proposed, they exist as one political people in regard to foreign nations, and several sovereign states in regard to their internal and domestic relations. Mr. Webster concedes that originally the States existed as severally sovereign states, but contends that by ratifying the constitution they have been made one sovereign political people, state, or nation, and that the General government is a supreme national government, though with a reservation in favor of State rights. But both are wrong. If the several States of the Union were severally sovereign states when they met in the convention, they are so now; and the constitution is only an agreement or compact between sovereigns, and the United States are, as Mr. Calhoun maintained, only a confederation of sovereign states, and not a single state or one political community.
But if the sovereignty persists in the States severally, any State, saving its faith, may whenever it chooses to do so, withdraw from the Union, absolve its subjects from all obligation to the Federal authorities, and make it treason in them to adhere to the Federal government. Secession is, then, an incontestable right; not a right held under the constitution or derived from the convention but a right held prior to it, independently of it, inherent in the State sovereignty, and inseparable from it. The State is bound by the constitution of the Union only while she is in it, and is one of the States united. In ratifying the constitution she did not part with her sovereignty, or with any portion of it, any more than France has parted with her sovereignty, and ceased to be an independent sovereign nation, by vesting the imperial power in Napoleon III. and his legitimate heirs male. The principal parts not with his power to his agent, for the agent is an agent only by virtue of the continued power of the principal. Napoleon is emperor by the will of the French people, and governs only by the authority of the French nation, which is as competent to revoke the powers it has conferred on him, when it judges proper, as it was to confer them. The Union exists and governs, if the States are sovereign, only by the will of the State, and she is as competent to revoke the powers she has delegated as she was to delegate them. The Union, as far as she is concerned, is her creation, and what she is competent to make she is competent to unmake.
In seceding or withdrawing from the Union a State may act very unwisely, very much against her own interests and the interests of the other members of the confederacy; but, if sovereign, she in doing so only exercises her unquestionable right. The other members may regret her action, both for her sake and their own, but they cannot accuse her or her citizens of disloyalty in seceding, nor of rebellion, if in obedience to her authority they defend their independence by force of arms against the Union. Neither she nor they, on the supposition, ever owed allegiance to the Union. Allegiance is due from the citizen to the sovereign state, but never from a sovereign state or from its citizens to any other sovereign state. While the State is in the Union the citizen owes obedience to the United States, but only because his State has, in ratifying the Federal constitution, enacted that it and all laws and treaties made under it shall be law within her territory. The repeal by the State of the act of ratification releases the citizen from the obligation even of obedience, and renders it criminal for him to yield it without her permission.
It avails nothing, on the hypothesis of the sovereignty of the States as distinguished from that of the United States, to appeal to the language or provisions of the Federal constitution. That constitutes the government, not the state or the sovereign. It is ordained by the sovereign, and if the States were severally independent and sovereign states, that sovereign is the States severally, not the States united. The constitution is law for the citizens of a State only so long as the State remains one of the United States. No matter, then, how clear and express the language, or stringent the provisions of the constitution, they bind only the citizens of the States that enact the constitution. The written constitution is simply a compact, and obliges only while the compact is continued by the States, each for itself. The sovereignty of the United States as a single or political people must be established before any thing in the constitution can be adduced as denying the right of secession.
That this doctrine would deprive the General government of all right to enforce the laws of the Union on a State that secedes, or the citizens thereof, is no doubt true; that it would weaken the central power and make the Union a simple voluntary association of states, no better than a rope of sand, is no less true; but what then? It is simply saying that a confederation is inferior to a nation, and that a federal government lacks many of the advantages of a national government. Confederacies are always weak in the centre, always lack unity, and are liable to be dissolved by the influence of local passions, prejudices, and interests. But if the United States are a confederation of states or nations, not a single nation or sovereign state, then there is no remedy.
If the Anglo-American colonies, when their independence of Great Britain was achieved and acknowledged, were severally sovereign states, it has never since been in their power to unite and form a single sovereign state, or to form themselves into one indivisible sovereign nation. They could unite only by mutual agreement, which gives only a confederation, in which each retains its own sovereignty, as two individuals, however closely united, retain each his own individuality. No sovereignty is of conventional origin, and none can emerge from the convention that did not enter it. Either the states are one sovereign people or they are not. If they are not, it is undoubtedly a great disadvantage; but a disadvantage that must be accepted, and submitted to without a murmur.
Whether the United States are one sovereign people or only a confederation is a question of very grave importance. If they are only a confederation of states—and if they ever were severally sovereign states, only a confederation they certainly are—state secession is an inalienable right, and the government has had no right to make war on the secessionists as rebels, or to treat them, when their military power is broken, as traitors, or disloyal persons. The honor of the government, and of the people who have sustained it, is then deeply compromised.
What then is the fact? Are the United States politically one people, nation, state, or republic, or are they simply independent sovereign states united in close and intimate alliance, league, or federation, by a mutual pact or agreement? Were the people of the United States who ordained and established the written constitution one people, or were they not? If they were not before ordaining and establishing the government, they are not now; for the adoption of the constitution did not and could not make them one. Whether they are one or many is then simply a question of fact, to be decided by the facts in the case, not by the theories of American statesmen, the opinion of jurists, or even by constitutional law itself. The old Articles of Confederation and the later Constitution can serve here only as historical documents. Constitutions and laws presuppose the existence of a national sovereign from which they emanate, and that ordains them, for they are the formal expression of a sovereign will. The nation must exist as an historical fact, prior to the possession or exercise of sovereign power, prior to the existence of written Constitutions and laws of any kind, and its existence must be established before they can be recognized as having any legal force or vitality.
The existence of any nation, as an independent sovereign nation, is a purely historical fact, for its right to exist as such is in the simple fact that it does so exist. A nation de facto is a nation de jure, and when we have ascertained the fact, we have ascertained the right. There is no right in the case separate from the fact—only the fact must be really a fact. A people hitherto a part of another people, or subject to another sovereign, is not in fact a nation, because they have declared themselves independent, and have organized a government, and are engaged in what promises to be a successful struggle for independence. The struggle must be practically over; the former sovereign must have practically abandoned the effort to reduce them to submission, or to bring them back under his authority, and if he continues it, does it as a matter of mere form; the postulant must have proved his ability to maintain civil government, and to fulfil within and without the obligations which attach to every civilized nation, before it can be recognized as an independent sovereign nation; because before it is not a fact that it is a sovereign nation. The prior sovereign, when no longer willing or able to vindicate his right, has lost it, and no one is any longer bound to respect it, for humanity demands not martyrs to lost causes.
This doctrine may seem harsh, and untenable even, to those sickly philanthropists who are always weeping over extinct or oppressed nationalities; but nationality in modern civilization is a fact, not a right antecedent to the fact. The repugnance felt to this assertion arises chiefly from using the word nation sometimes in a strictly political sense, and sometimes in its original sense of tribe, and understanding by it not simply the body politic, but a certain relation of origin, family, kindred, blood, or race. But God has made of one blood, or race, all the nations of men; and, besides, no political rights are founded by the law of nature on relations of blood, kindred, or family. Under the patriarchal or tribal system, and, to some extent, under feudalism, these relations form the basis of government, but they are economical relations rather than civil or political, and, under Christian and modern civilization, are restricted to the household, are domestic relations, and enter not the state or body politic, except by way of reminiscence or abuse. They are protected by the state, but do not found or constitute it. The vicissitudes of time, the revolutions of states and empires, migration, conquest, and intermixture of families and races, have rendered it impracticable, even if it were desirable, to distribute people into nations according to their relations of blood or descent.
There is no civilized nation now existing that has been, developed from a common ancestor this side of Adam, and the most mixed are the most civilized. The nearer a nation approaches to a primitive people of pure unmixed blood, the farther removed it is from civilization. All civilized nations are political nations, and are founded in the fact, not on rights antecedent to the fact. A hundred or more lost nationalities went to form the Roman empire, and who can tell us how many layers of crushed nationalities, superposed one upon another, serve for the foundation of the present French, English, Russian, Austrian, or Spanish nationalities? What other title to independence and sovereignty, than the fact, can you plead in behalf of any European nation? Every one has absorbed and extinguished—no one can say how many—nationalities, that once had as good a right to be as it has, or can have. Whether those nationalities have been justly extinguished or not, is no question for the statesman; it is the secret of Providence. Failure in this world is not always a proof of wrong; nor success, of right. The good is sometimes overborne, and the bad sometimes triumphs; but it is consoling, and even just, to believe that the good oftener triumphs than the bad.
In the political order, the fact, under God, precedes the law. The nation holds not from the law, but the law holds from the nation. Doubtless the courts of every civilized nation recognize and apply both the law of nature and the law of nations, but only on the ground that they are included, or are presumed to be included, in the national law, or jurisprudence. Doubtless, too, the nation holds from God, under the law of nature, but only by virtue of the fact that it is a nation; and when it is a nation dependent on no other, it holds from God all the rights and powers of any independent sovereign nation. There is no right behind the fact needed to legalize the fact, or to put the nation that is in fact a nation in possession of full national rights. In the case of a new nation, or people, lately an integral part of another people, or subject to another people@ the right of the prior sovereign must be extinguished indeed, but the extinction of that right is necessary to complete the fact, which otherwise would be only an initial, inchoate fact, not a fait accompli. But that right ceases when its claimant, willingly or unwillingly, formally or virtually, abandons it; and he does so when he practically abandons the struggle, and shows no ability or intention of soon renewing it with any reasonable prospect of success.
The notion of right, independent of the fact as applied to sovereignty, is founded in error. Empty titles to states and kingdoms are of no validity. The sovereignty is, under God, in the nation and the title and the possession are inseparable. The title of the Palaeologi to the Roman Empire of the East, of the king of Sicily, the king of Sardinia, or the king of Spain—for they are all claimants—to the kingdom of Jerusalem founded by Godfrey and his crusaders, of the Stuarts to the thrones of England, Ireland, and Scotland, or of the Bourbons to the throne of France, are vacated and not worth the parchment on which they are engrossed. The contrary opinion, so generally entertained, belongs to barbarism, not to civilization. It is in modern society a relic of feudalism, which places the state in the government, and makes the government a private estate—a private, and not a public right—a right to govern the public, not a right to govern held from or by the public.
The proprietor may be dispossessed in fact of his estate by violence, by illegal or unjust means, without losing his right, and another may usurp it, occupy it, and possess it in fact without acquiring any right or legal title to it. The man who holds the legal title has the right to oust him and re-enter upon his estate whenever able to do so. Here, in the economical order, the fact and the right are distinguishable, and the actual occupant may be required to show his title-deeds. Holding sovereignty to be a private estate, the feudal lawyers very properly distinguish between governments de facto and governments de jure, and argue very logically that violent dispossession of a prince does not invalidate his title. But sovereignty, it has been shown, is not in the government, but in the state, and the state is inseparable from the public domain. The people organized and held by the domain or national territory, are under God the sovereign nation, and remain so as long as the nation subsists without subjection to another. The government, as distinguished from the state or nation, has only a delegated authority, governs only by a commission from the nation. The revocation of the commission vacates, its title and extinguishes its rights. The nation is always sovereign, and every organic people fixed to the soil, and actually independent of every other, is a nation. There can then be no independent nation de facto that is not an independent nation de jure, nor de jure that is not de facto. The moment a people cease to be an independent nation in fact, they cease to be sovereign, and the moment they become in fact an independent nation, they are so of right. Hence in the political order the fact and the right are born and expire together; and when it is proved that a people, are in fact an independent nation, there is no question to be asked as to their right to be such nation.
In the case of the United States there is only the question of fact. If they are in fact one people they are so in right, whatever the opinions and theories of statesmen, or even the decisions of courts; for the courts hold from the national authority, and the theories and opinions of statesmen may be erroneous. Certain it is that the States in the American Union have never existed and acted as severally sovereign states. Prior to independence, they were colonies under the sovereignty of Great Britain, and since independence they have existed and acted only as states united. The colonists, before separation and independence, were British subjects, and whatever rights the colonies had they held by charter or concession from the British crown. The colonists never pretended to be other than British subjects, and the alleged ground of their complaint against the mother country was not that she had violated their natural rights as men, but their rights as British subjects—rights, as contended by the colonists, secured by the English constitution to all Englishmen or British subjects. The denial to them of these common rights of Englishmen they called tyranny, and they defended themselves in throwing off their allegiance to George III., on the ground that he had, in their regard, become a tyrant, and the tyranny of the prince absolves the subject from his allegiance.
In the Declaration of Independence they declared themselves independent states indeed, but not severally independent. The declaration was not made by the states severally, but by the states jointly, as the United States. They unitedly declared their independence; they carried on the war for independence, won it, and were acknowledged by foreign powers and by the mother country as the United States, not as severally independent sovereign states. Severally they have never exercised the full powers of sovereign states; they have had no flag—symbol of sovereignty—recognized by foreign powers, have made no foreign treaties, held no foreign relations, had no commerce foreign or interstate, coined no money, entered into no alliances or confederacies with foreign states or with one another, and in several respects have been more restricted in their powers in the Union than they were as British colonies.
Colonies are initial or inchoate states, and become complete states by declaring and winning their independence; and if the English colonies, now the United States, had separately declared and won their independence, they would unquestionably have become separately independent states, each invested by the law of nature with all the rights and powers of a sovereign nation. But they did not do this. They declared and won their independence jointly, and have since existed and exercised sovereignty only as states united, or the United States, that is, states sovereign in their union, but not in their separation. This is of itself decisive of the whole question.
But the colonists have not only never exercised the full powers of sovereignty save as citizens of states united, therefore as one people, but they were, so far as a people at all, one people even before independence. The colonies were all erected and endowed with their rights and powers by one and the same national authority, and the colonists were subjects of one and the same national sovereign. Mr. Quincy Adams, who almost alone among our prominent statesmen maintains the unity of the colonial people, adds indeed to their subjection to the same sovereign authority, community of origin, of language, manners, customs, and law. All these, except the last, or common law, may exist without national unity in the modern political sense of the term nation. The English common law was recognized by the colonial courts, and in force in all the colonies, not by virtue of colonial legislation, but by virtue of English authority, as expressed in English jurisprudence. The colonists were under the Common Law, because they were Englishmen, and subjects of the English sovereign. This proves that they were really one people with the English people, though existing in a state of colonial dependence, and not a separate people having nothing politically in common with them but in the accident of having the same royal person for their king. The union with the mother country was national, not personal, as was the union existing between England and Hanover, or that still existing between the empire of Austria, formerly Germany, and the kingdom of Hungary; and hence the British parliament claimed, and not illegally, the right to tax the colonies for the support of the empire, and to bind them in all cases whatsoever—a claim the colonies themselves admitted in principle by recognizing and observing the British navigation laws. The people of the several colonies being really one people before independence, in the sovereignty of the mother country, must be so still, unless they have since, by some valid act, divided themselves or been divided into separate and independent states.
The king, say the jurists, never dies, and the heralds cry, "The king is dead! Live the king!" Sovereignty never lapses, is never in abeyance, and the moment it ceases in one people it is renewed in another. The British sovereignty ceased in the colonies with independence, and the American took its place. Did the sovereignty, which before independence was in Great Britain, pass from Great Britain to the States severally, or to the States united? It might have passed to them severally, but did it? There is no question of law or antecedent right in the case, but a simple question of fact, and the fact is determined by determining who it was that assumed it, exercised it, and has continued to exercise it. As to this there is no doubt. The sovereignty as a fact has been assumed and exercised by the United States, the States united, and never by the States separately or severally. Then as a fact the sovereignty that before independence was in Great Britain, passed, on independence to the States united, and reappears in all its vigor in the United States, the only successor to Great Britain known to or recognized by the civilized world.
As the colonial people were, though distributed in distinct colonies, still one people, the people of the United States, though distributed into distinct and mutually independent States, are yet one sovereign people, therefore a sovereign state or nation, and not a simple league or confederacy of nations.
There is no doubt that all the powers exercised by the General Government, though embracing all foreign relations and all general interests and relations of all the States, might have been exercised by it under the authority of a mutual compact of the several States, and practically the difference between the compact theory and the national view would be very little, unless in cases like that of secession. On the supposition that the American people are one political people, the government would have the right to treat secession, in the sense in which the seceders understand it, as rebellion, and to suppress it by employing all the physical force at its command; but on the compact theory it would have no such right. But the question now under discussion turns simply on what has been and is the historical fact. Before the States could enter into the compact and delegate sovereign powers to the Union, they must have severally possessed them. It is historically certain that they did not possess them before independence; they did not obtain them by independence, for they did not severally succeed to the British sovereignty, to which they succeeded only as States united. When, then, and by what means did they or could they become severally sovereign States? The United States having succeeded to the British sovereignty in the Anglo-American colonies, they came into possession of full national sovereignty, and have alone held and exercised it ever since independence became a fact. The States severally succeeding only to the colonies, never held, and have never been competent to delegate sovereign powers.
The old Articles of Confederation, it is conceded, were framed on the assumption that the States are severally sovereign; but the several States, at the same time, were regarded as forming one nation, and, though divided into separate States, the people were regarded as one people. The Legislature of New York, as early as 1782, calls for an essential change In the Articles of Confederation, as proved to be inadequate to secure the peace, security, and prosperity of "the nation." All the proceedings that preceded and led to the call of the convention of 1781 were based on the assumption that the people of the United States were one people. The States were called united, not confederated States, even in the very Articles of Confederation themselves, and officially the United States were called "the Union." That the united colonies by independence became united States, and formed really one and only one people, was in the thought, the belief, the instinct of the great mass of the people. They acted as they existed through State as they had previously acted through colonial organization, for in throwing off the British authority there was no other organization through which they could act. The States, or people of the States, severally sent their delegates to the Congress of the United States, and these delegates adopted the rule of voting in Congress by States, a rule that might be revived without detriment to national unity. Nothing was more natural, then, than that Congress, composed of delegates elected or appointed by States, should draw up articles of confederation rather than articles of union, in order, if for no other reason, to conciliate the smaller States, and to prevent their jealousy of the larger States such as Virginia, Massachusetts, and Pennsylvania.
Moreover, the Articles of Confederation were drawn up and adopted during the transition from colonial dependence to national independence. Independence was declared in 1776, but it was not a fact till 1782, when the preliminary treaty acknowledging it was signed at Paris. Till then the United States were not an independent nation; they were only a people struggling to become an independent nation. Prior to that preliminary treaty, neither the Union nor the States severally were sovereign. The articles were agreed on in Congress in 1777, but they were not ratified by all the States till May, 1781, and in 1782 the movement was commenced in the Legislature of New York for their amendment. Till the organization under the constitution ordained by the people of the United States in 1787, and which went into operation in 1789, the United States had in reality only a provisional government, and it was not till then that the national government was definitively organized, and the line of demarcation between the General Government and the particular State governments was fixed.
The Confederation was an acknowledged failure, and was rejected by the American people, precisely because it was not in harmony with the unwritten or Providential constitution of the nation; and it was not in harmony with that constitution precisely because it recognized the States as severally sovereign, and substituted confederation for union. The failure of confederation and the success of union are ample proofs of the unity of the American nation. The instinct of unity rejected State sovereignty in 1787 as it did in 1861. The first and the last attempt to establish State sovereignty have failed, and the failure vindicates the fact that the sovereignty is in the States united, not in the States severally.
The constitution of the United States is twofold, written and unwritten, the constitution of the people and the constitution of the government.
The written constitution is simply a law ordained by the nation or people instituting and organizing the government; the unwritten constitution is the real or actual constitution of the people as a state or sovereign community, and constituting them such or such a state. It is Providential, not made by the nation, but born with it. The written constitution is made and ordained by the sovereign power, and presupposes that power as already existing and constituted.
The unwritten or Providential constitution of the United States is peculiar, and difficult to understand, because incapable of being fully explained by analogies borrowed from any other state historically known, or described by political philosophers. It belongs to the Graeco-Roman family, and is republican as distinguished from despotic constitutions, but it comes under the head of neither monarchical nor aristocratic, neither democratic nor mixed constitutions, and creates a state which is neither a centralized state nor a confederacy. The difficulty of understanding it is augmented by the peculiar use under it of the word state, which does not in the American system mean a sovereign community or political society complete in itself, like France, Spain, or Prussia, nor yet a political society subordinate to another political society and dependent on it. The American States are all sovereign States united, but, disunited, are no States at all. The rights and powers of the States are not derived from the United States, nor the rights and powers of the United States derived from the States.
The simple fact is, that the political or sovereign people of the United States exists as united States, and only as united States. The Union and the States are coeval, born together, and can exist only together. Separation is dissolution—the death of both. The United States are a state, a single sovereign state; but this single sovereign state consists in the union and solidarity of States instead of individuals. The Union is in each of the States, and each of the States is in the Union.
It is necessary to distinguish in the outset between the United States and the government of the United States, or the so-called Federal government, which the convention refused, contrary to its first intention to call the national government. That government is not a supreme national government, representing all the powers of the United States, but a limited government, restricted by its constitution to certain specific relations and interests. The United States are anterior to that government, and the first question to be settled relates to their internal and inherent Providential constitution as one political people or sovereign state. The written constitution, in its preamble, professes to be ordained by "We, the people of the United States." Who are this people? How are they constituted, or what the mode and conditions of their political existence? Are they the people of the States severally? No; for they call themselves the people of the United States. Are they a national people, really existing outside and independently of their organization into distinct and mutually independent States? No; for they define themselves to be the people of the United States. If they had considered themselves existing as States only, they would have said "We, the States," and if independently of State organization, they would have said "We, the people," do ordain, &c.
The key to the mystery is precisely in this appellation United States, which is not the name of the country, for its distinctive name is America, but a name expressive of its political organization. In it there are no sovereign people without States, and no States without union, or that are not united States. The term united is not part of a proper name, but is simply an adjective qualifying States, and has its full and proper sense. Hence while the sovereignty is and must be in the States, it is in the States united, not in the States severally, precisely as we have found the sovereignty of the people is in the people collectively or as society, not in the people individually. The life is in the body, not in the members, though the body could not exist if it had no members; so the sovereignty is in the Union, not in the States severally; but there could be no sovereign union without the States, for there is no union where there is nothing united.
This is not a theory of the constitution, but the constitutional fact itself. It is the simple historical fact that precedes the law and constitutes the law-making power. The people of the United States are one people, as has already been proved: they were one people, as far as a people at all, prior to independence, because under the same Common Law and subject to the same sovereign, and have been so since, for as united States they gained their independence and took their place among sovereign nations, and as united States they have possessed and still possess the government. As their existence before independence in distinct colonies did not prevent their unity, so their existence since in distinct States does not hinder them from being one people. The States severally simply continue the colonial organizations, and united they hold the sovereignty that was originally in the mother country. But if one people, they are one people existing in distinct State organizations, as before independence they were one people existing in distinct colonial organizations. This is the original, the unwritten, and Providential constitution of the people of the United States.
This constitution is not conventional, for it existed before the people met or could meet in convention. They have not, as an independent sovereign people, either established their union, or distributed themselves into distinct and mutually independent States. The union and the distribution, the unity and the distinction, are both original in their constitution, and they were born United States, as much and as truly so as the son of a citizen is born a citizen, or as every one born at all is born a member of society, the family, the tribe, or the nation. The Union and the States were born together, are inseparable in their constitution, have lived and grown up together; no serious attempt till the late secession movement has been made to separate them; and the secession movement, to all persons who knew not the real constitution of the United States, appeared sure to succeed, and in fact would have succeeded if, as the secessionists pretended, the Union had been only a confederacy, and the States had been held together only by a conventional compact, and not by a real and living bond of unity. The popular instinct of national unity, which seemed so weak, proved to be strong enough to defeat the secession forces, to trample out the confederacy, and maintain the unity of the nation and the integrity of its domain.
The people can act only as they exist, as they are, not as they are not. Existing originally only as distributed in distinct and mutually independent colonies, they could at first act only through their colonial organizations, and afterward only through their State organizations. The colonial people met in convention, in the person of representatives chosen by colonies, and after independence in the person of representatives chosen by States. Not existing outside of the colonial or State organizations, they could not act outside or independently of them. They chose their representatives or delegates by colonies or States, and called at first their convention a Congress; but by an instinct surer than their deliberate wisdom, they called it not the Congress of the confederate, but of the United States, asserting constitutional unity as well as constitutional multiplicity. It is true, in their first attempt to organize a general government, they called the constitution they devised Articles of Confederation, but only because they had not attained to full consciousness of themselves; and that they really meant union, not confederation, is evident from their adopting, as the official style of the nation or new power, united, not confederate States.
That the sovereignty vested in the States united, and was represented in some sort by the Congress, is evident from the fact that the several States, when they wished to adopt State constitutions in place of colonial charters, felt not at liberty to do so without asking and obtaining the permission of Congress, as the elder Adams informs us in his Diary, kept at the time; that is, they asked and obtained the equivalent of what has since, in the case of organizing new States, been called an "enabling act." This proves that the States did not regard themselves as sovereign States out of the Union, but as completely sovereign only in it. And this again proves that the Articles of Confederation did not correspond to the real, living constitution of the people. Even then it was felt that the organization and constitution of a State in the Union could be regularly effected only by the permission of Congress; and no Territory can, it is well known, regularly organize itself as a State, and adopt a State constitution, without an enabling act by Congress, or its equivalent.
New States, indeed, have been organized and been admitted into the Union without an enabling act of Congress; but the case of Kansas, if nothing else, proves that the proceeding is irregular, illicit, invalid, and dangerous. Congress, of course, can condone the wrong and validate the act, but it were better that the act should be validly done, and that there should be no wrong to condone. Territories have organized as States, adopted State constitutions, and instituted State governments under what has been called "squatter sovereignty;" but such sovereignty has no existence, because sovereignty is attached to the domain; and the domain is in the United States. It is the offspring of that false view of popular sovereignty which places it in the people personally or generically, irrespective of the domain, which makes sovereignty a purely personal right, not a right fixed to the soil, and is simply a return to the barbaric constitution of power. In all civilized nations, sovereignty is inseparable from the state, and the state is inseparable from the domain. The will of the people, unless they are a state, is no law, has no force, binds nobody, and justifies no act.
The regular process of forming and admitting new States explains admirably the mutual relation of the Union and the several States. The people of a Territory belonging to the United States or included in the public domain not yet erected into a State and admitted into the Union, are subjects of the United States, without any political rights whatever, and, though a part of the population, are no part of the sovereign people of the United States. They become a part of that people, with political rights and franchises, only when they are erected into a State, and admitted into the Union as one of the United States. They may meet in convention, draw up and adopt a constitution declaring or assuming them to be a State, elect State officers, senators, and representatives in the State legislature, and representatives and senators in Congress, but they are not yet a State, and are, as before, under the Territorial government established by the General Government. It does not exist as a State till recognized by Congress and admitted into the Union. The existence of the State, and the rights and powers of the people within the State, depend on their being a State in the Union, or a State united. Hence a State erected on the national domain, but itself outside of the Union, is not an independent foreign State, but simply no State at all, in any sense of the term. As there is no union outside of the States, so is there no State outside of the Union; and to be a citizen either of a State or of the United States, it is necessary to be a citizen of a State, and of a State in the Union. The inhabitants of Territories not yet erected into States are subjects, not citizens—that is, not citizens with political rights. The sovereign people are not the people outside of State organization, nor the people of the States severally, but the distinct people of the several States united, and therefore most appropriately called the people of the United States.
This is the peculiarity of the American constitution and is substantially the very peculiarity noted and dwelt upon by Mr. Madison in his masterly letter to Edward Everett, published in the "North American Review," October, 1830.
"I In order to understand the true character of the constitution of the United States," says Mr. Madison, "the error, not uncommon, must be avoided of viewing it through the medium either of a consolidated government or of a confederated government, whilst it is neither the one nor the other, but a mixture of both. And having, in no model, the similitudes and analogies applicable to other systems of government, it must, more than any other, be its own interpreter, according to its text and the facts in the case.
"From these it will be seen that the characteristic peculiarities of the constitution are: 1. The mode of its formation. 2. The division of the supreme powers of government between the States in their united capacity and the States in their individual capacities.
"1. It was formed not by the governments of the component States, as the Federal Government, for which it was substituted, was formed; nor was it formed by a majority of the people of the United States as a single community, in the manner of a consolidated government. It was formed by the States; that is, by the people in each of the States, acting in their highest sovereign capacity, and formed consequently by the same authority which formed the State constitution.
"Being thus derived from the same source as the constitutions of the States, it has within each State the same authority as the constitution of the State, and is as much a constitution in the strict sense of the term, within its prescribed sphere, as the constitutions of the States are within their respective spheres; but with this obvious and essential difference, that, being a compact among the States in their highest capacity, and constituting the people thereof one people for certain purposes, it cannot be altered or annulled at the will of the States individually, as the constitution of a State may be at its individual will.
"2. And that it divides the supreme powers of government between the government of the United States and the governments of the individual States, is stamped on the face of the instrument; the powers of war and of taxation, of commerce and treaties, and other enumerated powers vested in the government of the United States, are of high and sovereign a character as any of the powers reserved to the State governments."
Mr. Jefferson, Mr. Webster, Chancellor Kent, Judge Story, and nearly all the old Republicans, and even the old Federalists, on the question as to what is the actual constitution of the United States, took substantially the same view; but they all, as well as Mr. Madison himself, speak of the written constitution, which on their theory has and can have only a conventional value. Mr. Madison evidently recognizes no constitution of the people prior to the written constitution, from which the written constitution, or the constitution of the government, derives all its force and vitality. The organization of the American people, which he knew well—no man better,—and which he so justly characterizes, he supposes to have been deliberately formed by the people themselves, through the convention—not given them by Providence as their original and inherent constitution. But this was merely the effect of the general doctrine which he had adopted, in common with nearly all his contemporaries, of the origin of the state in compact, and may be eliminated from his view of what the constitution actually is, without affecting that view itself.
Mr. Madison lays great stress on the fact that though the constitution of the Union was formed by the States, it was formed, not by the governments, but by the people of the several States; but this makes no essential difference, if the people are the people of the States, and sovereign in their severalty, and not in their union. Had it been formed by the State governments with the acquiescence of the people, it would have rested on as high authority as if formed by the people of the State in convention assembled. The only difference is, that if the State ratified it by the legislature, she could abrogate it by the legislature; if in convention, she could abrogate it only in convention. Mr. Madison, following Mr. Jefferson, supposes the constitution makes the people of the several States one people for certain specific purposes, and leaves it to be supposed that in regard to all other matters, or in all other relations, they are sovereign; and hence he makes the government a mixture of a consolidated government and a confederated government, but neither the one nor the other exclusively. Say the people of the United States were one people in all respects, and under a government which is neither a consolidated nor a confederated government, nor yet a mixture of the two, but a government in which the powers of government are divided between a general government and particular governments, each emanating from the same source, and you will have the simple fact, and precisely what Mr. Madison means, when is eliminated what is derived from his theory of the origin of government in compact. It is this theory of the conventional origin of the constitution, and which excludes the Providential or real constitution of the people, that has misled him and so many other eminent statesmen and constitutional lawyers.
The convention did not create the Union or unite the States, for it was assembled by the authority of the United States who were present in it. The United States or Union existed before the convention, as the convention itself affirms in declaring one of its purposes to be "to provide for a more perfect union." If there had been no union, it could not and would not have spoken of providing for a more perfect union, but would have stated its purpose to be to create or form a union. The convention did not form the Union, nor in fact provide for a more perfect union; it simply provided for the more perfect representation or expression in the General government of the Union already existing. The convention, in common with the statesmen at the time, recognized no unwritten or Providential constitution of a people, and regarded the constitution of government as the constitution of the state, and consequently sometimes put the state for the government. In interpreting its language, it is necessary to distinguish between its act and its theory. Its act is law, its theory is not. The convention met, among other things, to organize a government which should more perfectly represent the union of the States than did the government created by the Articles of Confederation.
The convention, certainly, professes to grant or concede powers to the United States, and to prohibit powers to the States; but it simply puts the state for the government. The powers of the United States are, indeed, grants or trusts, but from God through the law of nature, and are grants, trusts, or powers always conceded to every nation or sovereign people. But none of them are grants from the convention. The powers the convention grants or concedes to the United States are powers granted or conceded by the United States to the General government it assembled to organize and establish, which, as it extends over the whole population and territory of the Union, and, as the interests it is charged with relate to all the States in common, or to the people as a whole, is with no great impropriety called the government of the United States, in contradistinction from the State governments, which have each only a local jurisdiction. But the more exact term is, for the one, the general government, and for the others, particular governments, as having charge only of the particular interests of the State; and the two together constitute the government of the United States, or the complete national government; for neither the General government nor the State government is complete in itself. The convention developed a general government, and prescribed its powers, and fixed their limits and extent, as well as the bounds of the powers of the State or particular governments; but they are the United States assembled in convention that do all this, and, therefore, strictly speaking, no powers are conceded to the United States that they did not previously possess. The convention itself, in the constitution it ordained, defines very clearly from whom the General government holds its powers. It holds them, as we I have seen, from "We, the people of the United States;" not we, the people of the States severally, but of the States united. If it had meant the States severally, it would have said, We, the States; if it had recognized and meant the population of the country irrespective of its organization into particular States, it would have said simply, We, the people. By saying "We, the people of the United States," it placed the sovereign power where it is, in the people of the States united.
The convention ordains that the powers not conceded to the General government or prohibited to the particular governments, "are reserved to the States respectively, or to the people." But the powers reserved to the States severally are reserved by order of the United States, and the powers not so reserved are reserved to the people. What people? The first thought is that they are the people of the States severally; for the constitution understands by people the state as distinguished from the state government; but if this had been its meaning in this place, it would have said, "are reserved to the States respectively, or to the people" thereof. As it does not say so, and does not define the people it means, it is necessary to understand by them the people called in the preamble "the people of the United States." This is confirmed by the authority reserved to amend the constitution, which certainly is not reserved to the States severally, but necessarily to the power that ordains the constitution—"We, the people of the United States." No power except that which ordains is or can be competent to amend a constitution of government. The particular mode prescribed by the convention in which the constitution of the government may be amended has no bearing on the present argument, because it is prescribed by the States united, not severally, and the power to amend is evidently reserved, not indeed to the General government, but to the United States; for the ratification by any State or Territory not in the Union counts for nothing. The States united, can, in the way prescribed, give more or less power to the General government, and reserve more or less power to the States individually. The so-called reserved powers are really reserved to the people of the United States, who can make such disposition of them as seems to them good.
The conclusion, then, that the General government holds from the States united, not from the States severally, is not invalidated by the fact that its constitution was completed only by the ratification of the States in their individual capacity. The ratification was made necessary by the will of the people in convention assembled; but the convention was competent to complete it and put it in force without that ratification, had it so willed. The general practice under the American system is for the convention to submit the constitution it has agreed on to the people, to be accepted or rejected by a plebiscitum; but such submission, though it may be wise and prudent, is not necessary. The convention is held to be the convention of the people, and to be clothed with the full authority of the sovereign people, and it is in this that it differs from the congress or the legislature. It is not a congress of delegates or ministers who are obliged to act under instructions, to report their acts to their respective sovereigns for approval or rejection; it is itself sovereign, and may do whatever the people themselves can do. There is no necessity for it to appeal to a plebiscitum to complete its acts. That the convention, on the score of prudence, is wise in doing so, nobody questions; but the convention is always competent, if it chooses, to ordain the constitution without appeal. The power competent to ordain the constitution is always competent to change, modify, or amend it. That amendments to the constitution of the government can be adopted only by being proposed by a convention of all the States in the Union, or by being proposed, by a two-thirds vote of both houses of Congress, and ratified by three-fourths of the States, is simply a conventional ordinance, which the convention can change at its pleasure. It proves nothing as it stands but the will of the convention.
The term ratification itself, because the term commonly used in reference to treaties between sovereign powers, has been seized on, since sometimes used by the convention, to prove that the constitution emanates from the States severally, and is a treaty or compact between sovereign states, not an organic or fundamental law ordained by a single sovereign will; but this argument is inadmissible, because, as we have just seen, the convention is competent to ordain the constitution without submitting it for ratification, and because the convention uses sometimes the word adopt instead of the word ratify. That the framers of the constitution held it to be a treaty, compact, or agreement among sovereigns, there is no doubt, for they so held in regard to all constitution of government; and there is just as little doubt that they intended to constitute, and firmly believed that they were constituting a real government. Mr. Madison's authority on this point is conclusive. They unquestionably regarded the States, prior to the ratification of the constitution they proposed, as severally sovereign, as they were declared to be by the old Articles of Confederation, but they also believed that all individuals are sovereign prior to the formation of civil society. Yet very few, if any, of them believed that they remained sovereign after the adoption of the constitution; and we may attribute to their belief in the conventional origin of all government,—the almost universal belief of the time among political philosophers,—the little account which they made of the historical facts that prove that the people of the United States were always one people, and that the States never existed as severally sovereign states.
The political philosophers of the present day do not generally accept the theory held by our fathers, and it has been shown in these pages to be unsound and incompatible with the essential nature of government. The statesmen of the eighteenth century believed that the state is derived from the people individually, and held that sovereignty is created by the people in convention. The rights and powers of the state, they held, were made up of the rights held by individuals under the law of nature, and which the individuals surrendered to civil society on its formation. So they supposed that independent sovereign states might meet in convention, mutually agree to surrender a portion of their rights, organize their surrendered rights into a real government, and leave the convention shorn, at least, of a portion of their sovereignty. This doctrine crops out everywhere in the writings of the elder Adams, and is set forth with rare ability by Mr. Webster, in his great speech in the Senate against the State sovereignty doctrine of General Hayne and Mr. Calhoun, which won for him the honorable title of Expounder of the Constitution—and expound it he, no doubt, did in the sense of its framers. He boldly concedes that prior to the adoption of the constitution, the people of the United States were severally sovereign states, but by the constitution they were made one sovereign political community or people, and that the States, though retaining certain rights, have merged their several sovereignty in the Union.
The subtle mind of Mr. Calhoun, who did not hold that a state can originate in compact, proved to Mr. Webster that his theory could not stand; that, if the States went into the convention sovereign States, they came out of it sovereign States; and that the constitution they formed could from the nature of the case be only a treaty, compact, or agreement between sovereigns. It could create an agency, but not a government. The sovereign States could only delegate the exercise of their sovereign powers, not the sovereign powers themselves. The States could agree to exercise certain specific powers of sovereignty only in common, but the force and vitality of the agreement depended on the States, parties to the agreement retaining respectively their sovereignty. Hence, he maintained that sovereignty, after as before the convention, vested in the States severally. Hence State sovereignty, and hence his doctrine that in all cases that cannot come properly before the Supreme Court of the United States for decision, each State is free to decide for itself, on which he based the right of nullification, or the State veto of acts of Congress whose constitutionality the State denies. Mr. Calhoun was himself no secessionist, but he laid down the premises from which secession is the logical deduction; and large numbers of young men, among the most open, the most generous, and the most patriotic in the country, adopted his premises, without being aware of this fact any more than he himself was, and who have been behind none in their loyalty to the Union, and in their sacrifices to sustain it, in the late rebellion.
The formidable rebellion which is now happily suppressed, and which attempted to justify itself by the doctrine of State sovereignty, has thrown, in many minds, new light on the subject, and led them to re-examine the historical facts in the case from a different point of view, to see if Mr. Calhoun's theory is not as unfounded as he had proved Mr. Webster's theory to be. The facts in the case really sustain neither, and both failed to see it: Mr. Calhoun because he had purposes to accomplish which demanded State sovereignty, and Mr. Webster because he examined them in the distorting medium of the theory or understanding of the statesmen of the eighteenth century. The civil war has vindicated the Union, and defeated the armed forces of the State sovereignty men; but it has not refuted their doctrine, and as far as it has had any effect, it has strengthened the tendency to consolidation or centralism.
But the philosophy, the theory of government, the understanding of the framers of the constitution, must be considered, if the expression will be allowed, as obiter dicta, and be judged on their merits. What binds is the thing done, not the theory on which it was done, or on which the actors explained their work either to themselves or to others. Their political philosophy, or their political theory, may sometimes affect the phraseology they adopt, but forms no rule for interpreting their work. Their work was inspired by and accords with the historical facts in the case, and is authorized and explained by them. The American people were not made one people by the written constitution, as Mr. Jefferson, Mr. Madison, Mr. Webster, and so many others supposed, but were made so by the unwritten constitution, born with and inherent in them.