CHAPTER II.

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THE CONSTITUTION OF THE UNITED STATES.

THE government of the United States is the existing representative of the national government which has always in some form existed over the American States. Before the Revolution, the powers of government, which were exercised over all the colonies. in common, were so exercised as pertaining either to the Crown of Great Britain or to the Parliament; but the extent of those powers, and how far vested in the Crown and how far in the Parliament, were questions never definitely settled, and which constituted subjects of dispute between the mother country and the people of the colonies, finally resulting in hostilities.1 That the power over peace and war, the general direction of commercial intercourse with other nations, and the general control of such subjects as fall within the province of international law, were vested in the home government, and that the colonies were not, therefore, sovereign States in the full and proper sense of that term, were propositions never seriously disputed in America, and indeed were often formally conceded; and the disputes related to questions as to what were or were not matters of internal regulation, the control of which the colonists insisted should be left exclusively to themselves.

Besides the tie uniting the several colonies through the crown of Great Britain, there had always been a strong tendency to a more intimate and voluntary union, whenever circumstances of danger threatened them; and this tendency led to the New England Confederacy of 1643, to the temporary Congress of 1690, to the plan of union agreed upon in Convention of 1754, but rejected by the Colonies as well as the Crown, to the Stamp Act Congress of 1765, and finally to the Continental Congress of 1774. When the difficulties with Great Britain culminated in actual war, the

1 1 Pitkin's Hist. U. S. c. 6; Life and Works of John Adams, Vol. I. pp. 122, 161; Vol. II. p. 311; Works of Jefferson, Vol. IX. p. 294; 2 Marshall's Washington, c. 2; Declaration of Rights by Colonial Congress of 1765; Ramsay's Revolution in South Carolina, pp. 6-11; 5 Bancroft's U. S. c. 18; 1 Webster's Works, 128; Story on Const. § 183, et seq.

Congress of 1775 assumed to itself those powers of external control which before had been conceded to the Crown or to [* 6] the * Parliament, together with such other powers of sovereignty as it seemed essential a general government should exercise, and thus became the national government of the United Colonies. By this body, war was conducted, independence declared, treaties formed, and admiralty jurisdiction exercised. It is evident, therefore, that the States, though declared to be "sovereign and independent," were never strictly so in their individual character, but that they were always, in respect to the higher powers of sovereignty, subject to the control of a central power, and were never separately known as members of the family of nations.1

"All the country now possessed by the United States was [prior to the Revolution] a part of the dominions appertaining to the Crown of Great Britain. Every acre of land in this country was then held, mediately or immediately, by grants from that crown. All the people of this country were then subjects of the king of Great Britain, and owed allegiance to him; and all the civil authority then existing or exercised here flowed from the head of the British empire. They were in a strict sense fellow-subjects, and in a variety of respects one people. When the Revolution commenced, the patriots did not assert that only the same affinity and social connection subsisted between the people of the colonies, which subsisted between the people of Gaul, Britain, and Spain while Roman provinces, namely, only that affinity and social connection which result from the mere circumstance of being governed by one prince; different ideas prevailed, and gave occasion to the Congress of 1774 and 1775.

"The Revolution, or rather the Declaration of Independence, found the people already united for general purposes, and at the same time providing for their more domestic concerns by State conventions and other temporary arrangements. From the Crown of Great Britain the sovereignty of their country passed to the people of it; and it was not then an uncommon opinion that the unappropriated lands which belonged to the Crown passed, not to the people of the colony or State within whose limits they were situated, but to the whole people. On whatever principles this opinion rested, it did not give way to the other, and thirteen sovereignties were considered as emerged from the principles of the Revolution, combined with local convenience and considerations; the people, nevertheless, continued to consider themselves, in a national point of view, as one people; and they continued without interruption to manage their national concerns accordingly. Afterwards, in the hurry of the war, and in the warmth of mutual confidence, they made a confederation of the States the basis of a general government. Experience disappointed the expectations they had formed from it; and then the people, in their collective capacity, established the present Constitution." Per Jay, Ch. J., in Chisholm v. Georgia, 2 Dall. 470. See this point forcibly put and elaborated by Mr. A. J. Dallas, in his Life and Writings, by G. M. Dallas, 200-207. Also in Texas v. White, 7 Wall. 724.

The Declaration of Independence made them sovereign and independent States, by altogether abolishing the foreign jurisdiction, and substituting a national government of their own creation.

But while national powers were assumed by and conceded

to the Congress of 1775-76, that body was nevertheless [*7] strictly revolutionary in its character, and, like all revolutionary bodies, its authority was undefined, and could be limited. only, first, by instructions to individual delegates by the States choosing them; second, by the will of the Congress; and third, by the power to enforce that will.1 As in the latter particular it was essentially feeble, the necessity for a clear specification of powers which should be exercised by the national government became speedily apparent, and led to the adoption of the Articles of Confederation. But those articles did not concede the full measure of power essential to the efficiency of a national government at home, the enforcement of respect abroad, or the preservation of the public faith or public credit; and the difficulties experienced induced the election of delegates to the Constitutional Convention held in 1787, by which a Constitution was formed which was put into operation in 1789. As much larger powers were vested by this instrument in the general government than had ever been exercised in this country, by either the Crown, the Parliament, or the Revolutionary Congress, and larger than those conceded to the Congress under the Articles of Confederation, the assent of the people of the several States was essential to its acceptance, and a provision. was inserted in the Constitution that the ratification * of [* 8] the conventions of nine States should be sufficient for the establishment of the Constitution between the States so ratifying the same. In fact, the Constitution was ratified by conventions of delegates chosen by the people in eleven of the States, before the new government was organized under it; and the remaining two, North Carolina and Rhode Island, by their refusal to accept, and by the action of the others in proceeding separately, were excluded altogether from that national jurisdiction which before had embraced them. This exclusion was not warranted by any thing contained in the Articles of Confederation, which purported to be articles of

1 See remarks of Iredell, J., in Penhallow v. Doane's Adm'r, 3 Dall. 91, and of Blair, J., in the same case, p. 111. The true doctrine on this subject is very clearly explained by Chase, J., in Ware v. Hylton, 3 Dall. 231.

"perpetual union"; and the action of the eleven States in making radical revision of the Constitution, and excluding their associates for refusal to assent, was really revolutionary in character, and only to be defended on the same ground of necessity on which all revolutionary action is justified, and which in this case was the absolute need, fully demonstrated by experience, of a more efficient general government.2

1 Mr. Van Buren has said of it that it was lawless act." Political Parties, p. 50.

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an heroic, though perhaps a

"Two questions of a very delicate nature present themselves on this occasion: 1. On what principle the confederation, which stands in the form of a solemn compact among the States, can be superseded without the unanimous consent of the parties to it; 2. What relation is to subsist between the nine or more States ratifying the Constitution, and the remaining few who do not become parties to it. The first question is answered at once by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's God, which declares that the safety and happiness of society are the objects at which all political institutions aim, and to which all such institutions must be sacrificed. Perhaps, also, an answer may be found without searching beyond the principles of the compact itself. It has been heretofore noted, among the defects of the confederation, that in many of the States it had received no higher sanction than a mere legislative ratification. The principle of reciprocality seems to require that its obligation on the other States should be reduced to the same standard. A compact between independent sovereigns, founded on acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties, that all of the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach committed by either of the parties absolves the others, and authorizes them, if they please, to pronounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the federal pact, will not the complaining parties find it a difficult task to answer the multiplied and important infractions with which they may be confronted? The time has been when it was incumbent on us all to veil the ideas which this paragraph exhibits. The scene is now changed, and with it the part which the same motives dictate. The second question is not less delicate, and the flattering prospect of its being merely hypothetical forbids an over-curious discussion of it. It is one of those cases which must be left to provide for itself. In general it may be observed, that although no political relation can subsist between the assenting and dissenting States, yet the moral relations will remain uncancelled. The claims of justice, both on one side and on the other, will be in force and must be fulfilled; the rights of humanity must in all cases be duly and mutually respected; whilst considerations of a common interest, and above all the remembrance of the endearing scenes which are past, and the anticipation of a speedy triumph

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* Left at liberty now to assume complete powers of sovereignty as independent governments, these two States saw fit soon to resume their place in the American family, under a permission contained in the Constitution; and new States have since been added from time to time, all of them, with the exception of one, organized by the consent of the general government and embracing territory previously under its control. The exception was Texas, which had previously been an independent sovereign State, but which, by the conjoint action of its government and that of the United States, was received into the Union on an equal footing with the other States.

Without therefore discussing, or even designing to allude to any abstract theories as to the precise position and actual power of the several States at the time of forming the present Constitution, it may be said of them generally that they have at all times been subject to some common national government, which has exercised control over the subjects of war and peace, and other matters pertaining to external sovereignty; and that when the only three States which ever exercised complete sovereignty accepted the Constitution and came into the Union, on an equal footing with all the other States, they thereby accepted the same relative position to the general government, and divested themselves permanently of those national powers which the others had never exercised.

The government of the United States is one of enumerated powers; the national Constitution being the instrument which specifies them, and in which authority should be found for the exercise of any power which the national government assumes to possess.2 In this respect it differs from the constitutions of

over the obstacles to reunion, will, it is hoped, not urge in vain moderation on one side, and prudence on the other." Federalist, No. 43 (by Madison).

1 See this subject discussed in Gibbons v. Ogden, 9 Wheat. 1.

2 "The government of the United States can claim no powers which are not granted to it by the Constitution; and the powers actually granted must be such as are expressly given, or given by necessary implication." Per Marshall, Ch. J., in Martin v. Hunter's Lessee, 1 Wheat. 326. "This instrument contains an enumeration of the powers expressly granted by the people to their government." Marshall, Ch. J., in Gibbons v. Ogden, 9 Wheat. 187. See Calder v. Bull, 3 Dall. 386; Briscoe v. Bank of Kentucky, 11 Pet. 257; Gilman v. Philadelphia, 3 Wall. 713; Weister v. Hade, 52 Penn. St. 477. The tenth amendment to the Constitution provides that "the powers not delegated to the United States by