Chapter 2:
The nature of the American compact.The two principal expounders of the Constitution of the United States, in the North, have been Daniel Webster and Joseph Story, both from Massachusetts. Webster was, for a long time, a Senator in Congress, and Story a Justice of the Supreme Court of the United States. The latter has written an elaborate work on the Constitution, full of sophistry, and not always very reliable as to its facts. The great effort of both these men has been to prove, that the Constitution is not a compact between the States, but an instrument of government, formed by the people of the United States, as contradistinguished from the States. They both admit, that if the Constitution were a compact between the States, the States would have a right to withdraw from the compact—all agreements between States, in their sovereign capacity, being, necessarily, of no more binding force than treaties. These gentlemen are not always very consistent, for they frequently fall into the error of calling the Constitution a compact, when they are not arguing this particular question; in short, it is, and it is not a compact, by turns, according to the use they intend to make of the argument. Mr. Webster's doctrine of the Constitution, chiefly relied on by Northern men, is to be found in his speech of 1833, in reply to Mr. Calhoun. It is in that speech that he makes the admission, that if the Constitution of the United States is a compact between the States, the States have the right to withdraw from it at pleasure. He says, ‘If a league between sovereign powers have no limitation as to the time of duration, and contains nothing making it perpetual, it subsists only during the good pleasure of the parties, although no violation be complained of. If in the opinion of either party it be violated, such party may say he will no longer [25] fulfil its obligations, on his part, but will consider the whole league or compact as at an end, although it might be one of its stipulations that it should be perpetual.’
In his ‘Commentaries on the Constitution,’ Mr. Justice Story says, ‘The obvious deductions which may be, and indeed have been drawn, from considering the Constitution a compact between States, are, that it operates as a mere treaty, or convention between them, and has an obligatory force no longer than suits their pleasure, or their consent continues.’ The plain principles of public law, thus announced by these distinguished jurists, cannot be controverted. If sovereign States make a compact, although the object of the compact be the formation of a new government for their common benefit, they have the right to withdraw from that compact at pleasure, even though, in the words of Mr. Webster, ‘it might be one of its stipulations that it should be perpetual.’
There might, undoubtedly, be such a thing as State merger; that is, that two States, for instance, might agree that the sovereign existence of one of them should be merged in the other. In which case, the State parting with its sovereignty could never reclaim it by peaceable means. But where a State shows no intention of parting with its sovereignty, and, in connection with other States, all equally jealous of their sovereignty with herself, only delegates a part of it—never so large a part, if you please—to a common agent, for the benefit of the whole, there can have been no merger. This was eminently the case with regard to these United States. No one can read the ‘Journal and Debates of the Philadelphia Convention,’ or those of the several State Conventions to which the Constitution was submitted for adoption, without being struck with the scrupulous care with which all the States guarded their sovereignty. The Northern States were quite as jealous, in this respect, as the Southern States. Next to Massachusetts, New Hampshire has been, perhaps, the most fanatical and bitter of the former States, in the prosecution of the late war against the South. That State, in her Constitution, adopted in 1792, three years after the Federal Constitution went into operation, inserted the following provision, among others, in her declaration of principles: ‘The people of this [26] Common-wealth have the sole and exclusive right of governing themselves as a free, sovereign, and independent State; and do, and forever hereafter shall exercise and enjoy every power, jurisdiction, and right which is not, or may not hereafter be, by them, expressly delegated to the United States.’
Although it was quite clear that the States, when they adopted the Constitution of the United States, reserved, by implication, all the sovereign power, rights, and privileges that had not been granted away—as a power not given is necessarily withheld—yet so jealous were they of the new government they were forming, that several of them insisted, in their acts of ratification, that the Constitution should be so amended as explicitly to declare this truth, and thus put it beyond cavil in the future. Massachusetts expressed herself as follows, in connection with her ratification of the Constitution: ‘As it is the opinion of this Convention, that certain amendments and alterations in said Constitution would remove the fears, and quiet the apprehensions of the good people of the Commonwealth, and more effectually guard against an undue administration of the Federal Government, the Convention do, therefore, recommend that the following alteration and provisions be introduced in said Constitution: First, that it be explicitly declared, that all powers not delegated by the aforesaid Constitution are reserved to the several States, to be by them exercised.’
Webster and Story had not yet arisen in Massachusetts, to teach the new doctrine that the Constitution had been formed by the ‘People of the United-States,’ in contra-distinction to the people of the States. Massachusetts did not speak in the name of any such people, but in her own name. She was not jealous of the remaining people of the United States, as fractional parts of a whole, of which she was herself a fraction, but she was jealous of them as States; as so many foreign peoples, with whom she was contracting. The powers not delegated were to be reserved to those delegating them, to wit: the ‘several States;’ that is to say, to each and every one of the States.
Virginia fought long and sturdily against adopting the Constitution at all. Henry, Mason, Tyler, and a host of other [27] giants raised their powerful voices against it, warning their people, in thunder tones, that they were rushing upon destruction. Tyler even went so far as to say that ‘British tyranny would have been more tolerable.’ So distasteful to her was the foul embrace that was tendered her, that she not only recommended an amendment of the Constitution, similar to that which was recommended by Massachusetts, making explicit reservation of her sovereignty, but she annexed a condition to her ratification, to the effect that she retained the right to withdraw the powers which she had granted, ‘whenever the same shall be perverted to her injury or oppression.’
North Carolina urged the following amendment—the same, substantially, as that urged by Virginia and Massachusetts: ‘That each State in the Union shall respectively [not aggregately] retain every power, jurisdiction, and right which is not by this Constitution delegated to the Congress of the United States, or to the departments of the Federal Government.’
Pennsylvania guarded her sovereignty by insisting upon the following amendment: ‘All the rights of sovereignty which are not, by the said Constitution, expressly and plainly vested in the Congress, shall be deemed to remain with, and shall be exercised by the several States in the Union.’ The result of this jealousy on the part of the States was the adoption of the 10th amendment to the Constitution of the United States as follows: ‘The powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States, or to the people.’
It is thus clear beyond doubt, that the States not only had no intention of merging their sovereignty in the new government they were forming, but that they took special pains to notify each other, as well as their common agent, of the fact. The language which I have quoted, as used by the States, in urging the amendments to the Constitution proposed by them, was the common language of that day. The new government was a federal or confederate government—in the ‘Federalist,’ it is frequently called a ‘Confederation’—which had been created by the States for their common use and benefit; each State taking special pains, as we have seen, to declare that it retained all the sovereignty which it had not expressly granted [28] away. And yet, in face of these facts, the doctrine has been boldly declared, in our day, that the Constitution was formed by the people of the United States in the aggregate, as one nation, and that it has a force and vitality independent of the States, which the States are incompetent to destroy! The perversion is one not so much of doctrine as of history. It is an issue of fact which we are to try.
It is admitted, that if the fact be as stated by our Northern brethren, the conclusion follows: It is, indeed, quite plain, that if the States did not create the Federal Constitution, they cannot destroy it. But it is admitted, on the other hand, by both Webster and Story, as we have seen, that if they did create it, they may destroy it; nay, that any one of them may destroy it as to herself; that is, may withdraw from the compact at pleasure, with or without reason. It is fortunate for us of the South that the issue is so plain, as that it may be tried by the record. Sophistry will sometimes overlie reason and blind men's judgment for generations; but sophistry, with all its ingenuity, cannot hide a fact. The speeches of Webster and the commentaries of Story have been unable to hide the fact of which I speak; it stands emblazoned on every page of our constitutional history.
Every step that was taken toward the formation of the Constitution of the United States, from its inception to its adoption, was taken by the States, and not by the people of the United States in the aggregate. There was no such people known as the people of the United States, in the aggregate, at the time of the formation of the Constitution. If there is any such people now, it was formed by the Constitution. But this is not the question. The question now is, who formed the Constitution, not what was formed by it? If it was formed by the States, admit our adversaries, it may be broken by the States.
The delegates who met at Annapolis were sent thither by the States, and not by the people of the United States. The Convention of 1787, which formed the Constitution, was equally composed of members sent to Philadelphia by the States. James Madison was chosen by the people of Virginia and not by the people of New York; and Alexander [29] Hamilton was chosen by the people of New York, and not by the people of Virginia. Every article, section, and paragraph of the Constitution was voted for, or against, by States; the little State of Delaware, not much larger than a single county of New York, off-setting the vote of that great State.
And when the Constitution was formed, to whom was it submitted for ratification? Was there any convention of the people of the United States in the aggregate, as one nation, called for the purpose of considering it? Did not each State, on the contrary, call its own convention? and did not some of the States accept it, and some of them refuse to accept it? It was provided that when nine States should accept it, it should go into operation; was it pretended that the vote of these nine States was to bind the others? Is it not a fact, on the contrary, that the vote of eleven States did not bind the other two? Where was that great constituency, composed of the people of the United States in the aggregate, as one nation, all this time?
‘But,’ say those who are opposed to us in this argument, ‘look at the instrument itself, and you will see that it was framed by the people of the United States, and not by the States. Does not its Preamble read thus: “We, the people of the United States, in order to form a more perfect Union, &c., do ordain and establish this Constitution for the United States of America” ?’ Perhaps there has never been a greater literary and historical fraud practised upon any people, than has been attempted in the use to which these words have been put. And, perhaps, no equal number of reading and intelligent men has ever before submitted so blindly and docilely to be imposed upon by literary quackery and the legerdemain of words, as our fellow-citizens of the North have in accepting Webster's and Story's version of the preamble of the Constitution.
A brief history of the manner, in which the words, ‘We, the people,’ &c., came to be adopted by the Convention which framed the Constitution, will sufficiently expose the baldness of the cheat. The only wonder is, that such men as Webster and Story should have risked their reputations with posterity, on a construction which may so easily be shown to be a [30] falsification of the facts of history. Mr. Webster, in his celebrated speech in the Senate, in 1833, in reply to Mr. Calhoun, made this bold declaration: ‘The Constitution itself, in its very front, declares, that it was ordained and established by the people of the United States in the aggregate!’ From that day to this, this declaration of Mr. Webster has been the chief foundation on which all the constitutional lawyers of the North have built their arguments against the rights of the States as sovereign copartners.
If the Preamble of the Constitution stood alone, without the lights of contemporaneous history to reveal its true character, there might be some force in Mr. Webster's position; but, unfortunately for him and his followers, he has misstated a fact It is not true, as every reader of constitutional history must know, that the Constitution of the United States was ordained by the people of the United States in the aggregate; nor did the Preamble to the Constitution mean to assert that it was true. The great names of Webster, and Story have been lent to a palpable falsification of history, and as a result of that falsification, a great war has ensued, which has sacrificed its hecatomb of victims, and desolated, and nearly destroyed an entire people. The poet did not say, without reason, that ‘words are things.’ Now let us strip off the disguises worn by these wordmongers, and see where the truth really lies. Probably some of my readers will learn, for the first time, the reasons which induced the framers of the Constitution to adopt the phraseology, ‘We, the people,’ &c., in the formation of their Preamble to that instrument. In the original draft of the Constitution, the States, by name, were mentioned, as had been done in the Articles of Confederation. The States had formed the old Confederation, the States were equally forming the new Confederation; hence the Convention naturally followed in their Preamble the form which had been set them in the old Constitution, or Articles. This Preamble, purporting that the work of forming the new government was being done by the States. remained at the head of the instrument during all the deliberations of the Convention, and no one member ever objected to it. It expressed a fact which no one thought of denying. It is thus a fact beyond question, not only that the Constitution [31] was framed by the States, but that the Convention so proclaimed in ‘front of the instrument.’
Having been framed by the States, was it afterward adopted, or ‘ordained and established,’ to use the words of Mr. Webster, by the people of the United States, in the aggregate, and was this the reason why the words were changed? There were in the Convention several members in favor of submitting the instrument to the people of the United States in the aggregate, and thereby accomplishing their favorite object of establishing a consolidated government—Alexander Hamilton and Gouverneur Morris among the number. On the ‘Journal of the Convention,’ the following record is found: ‘Gouverneur Morris moved that the reference of the plan [i. e. of the Constitution] be made to one General Convention, chosen and authorized by the people, to consider, amend, and establish the same.’ Thus the question, as to who should ‘ordain and establish’ the Constitution, whether it should be the people in the aggregate, or the people of the States, was clearly presented to the Convention. How did the Convention vote on this proposition? The reader will perhaps be surprised to learn, that the question was not even brought to a vote, for want of a second; and yet this is the fact recorded by the Convention.
The reader who has read Mr. Madison's articles in the ‘Federalist,’ and his speeches before the Virginia Convention, in favor of the ratification of the Constitution, will perhaps be surprised to learn that he, too, made a somewhat similar motion. He was not in favor, it is true, of referring the instrument for adoption to a General Convention of the whole people, alone, but he was in favor of referring it to such a Convention, in connection with Conventions to be called by the States, thus securing a joint or double ratification, by the people of the United States in the aggregate, and by the States; the effect of which would have been to make the new government a still more complex affair, and to muddle still further the brains of Mr. Webster and Mr. Justice Story. But this motion failed also, and the Constitution was referred to the States for adoption.
But now a new question arose, which was, whether the Constitution was to be ‘ordained and established’ by the [32] legislatures of the States, or by the people of the States in Convention. All were agreed, as we have seen, that the instrument should be referred to the States. This had been settled; but there were differences of opinion as to how the States should act upon it. Some were in favor of permitting each of the States to choose, for itself, how it would ratify it; others were in favor of referring it to the legislatures, and others, again, to the people of the States in Convention. It was finally decided that it should be referred to Conventions of the people, in the different States.
This being done, their work was completed, and it only remained to refer the rough draft of the instrument to the ‘Committee on Style,’ to prune and polish it a little — to lop off a word here, and change or add a word there, the better to conform the language to the sense, and to the proprieties of grammar and rhetoric. The Preamble, as it stood, at once presented a difficulty. All the thirteen States were named in it as adopting the instrument, but it had been provided, in the course of its deliberations by the Convention, that the new government should go into effect if nine States adopted it. Who could tell which these nine States would be? It was plainly impossible to enumerate all the States—for all of them might not adopt it—or any particular number of them, as adopting the instrument.
Further, it having been determined, as we have seen, that the Constitution should be adopted by the people of the several States, as contra-distinguished from the legislatures of the States, the phraseology of the Preamble must be made to express this idea also. To meet these two new demands upon the phraseology of the instrument, the Committee on Style adopted the expression, ‘We, the people of the United States,’ —meaning, as every one must see, ‘We, the people of the several States united by this instrument.’ And this is the foundation that the Northern advocates of a consolidated government build upon, when they declare that the people of the United States in the aggregate, as one nation, adopted the Constitution, and thus gave the fundamental law to the States, instead of the States giving it to the Federal Government.
It is well known that this phrase, ‘We, the people,’ &c., be [33] came a subject of discussion in the Virginia ratifying Convention. Patrick Henry, with the prevision of a prophet, was, as we have seen, bitterly opposed to the adoption of the Constitution. He was its enemy a l'outrance. Not having been a member of the Convention, of 1787, that framed the instrument, and being unacquainted with the circumstances above detailed, relative to the change which had been made in the phraseology of its Preamble, he attacked the Constitution on the very ground since assumed by Webster and Story, to wit: that the instrument itself proclaimed that it had been ‘ordained and established’ by the people of the United States in the aggregate, instead of the people of the States. Mr. Madison replied to Henry on this occasion. Madison had been in the Convention, knew, of course, all about the change of phraseology in question, and this was his reply: ‘The parties to it [the Constitution] were the people, but not the people as composing one great society, but the people as composing thirteen sovereignties. If it were a consolidated government,’ continued he, ‘the assent of a majority of the people would be sufficient to establish it. But it was to be binding on the people of a State only by their own separate consent.’ There was, of course, nothing more to be said, and the Virginia Convention adopted the Constitution.
Madison has been called the Father of the Constitution. Next to him, Alexander Hamilton bore the most conspicuous part in procuring it to be adopted by the people. Hamilton, as is well known, did not believe much in republics; and least of all did he believe in federal republics. His great object was to establish a consolidated republic, if we must have a republic at all. He labored zealously for this purpose, but failed. The States, without an exception, were in favor of the federal form; and no one knew better than Hamilton the kind of government which had been established.
Now let us hear what Hamilton, an unwilling, but an honest witness, says on this subject. Of the eighty-five articles in the ‘Federalist,’ Hamilton wrote no less than fifty. Having failed to procure the establishment of a consolidated government, his next great object was, to procure the adoption by the States of [34] the present Constitution, and to this task, accordingly, he now addressed his great intellect and powerful energies. In turning over the pages of the ‘Federalist,’ we can scarcely go amiss in quoting Hamilton, to the point that the Constitution is a compact between the States, and not an emanation from the people of the United States in the aggregate. Let us take up the final article, for instance, the 85th. In this article we find the following expressions: ‘The compacts which are to embrace thirteen distinct States in a common bond of amity and Union, must necessarily be compromises of as many dissimilar interests and inclinations.’ Again: ‘The moment an alteration is made in the present plan, it becomes, to the purpose of adoption, a new one, and must undergo a new decision of each State. To its complete establishment throughout the Union, it will, therefore, require the concurrence of thirteen States.’
And again: ‘Every Constitution for the United States must, inevitably, consist of a great variety of particulars, in which thirteen Independent States are to be accommodated in their interests, or opinions of interests. * * * Hence the necessity of moulding and arranging all the particulars which are to compose the whole in such a manner as to satisfy all the parties to the compact.’ Thus, we do not hear Hamilton, any more than Madison, talking of a ‘people of the United States in the aggregate’ as having anything to do with the formation of the new charter of government. He speaks only of States, and of compacts made or to be made by States.
In view of the great importance of the question, whether it was the people of the United States in the aggregate who ‘ordained and established’ the Constitution, or the States,— for this, indeed, is the whole gist of the controversy between the North and South,—I have dwelt somewhat at length on the subject, and had recourse to contemporaneous history; but this was scarcely necessary. The Constitution itself settles the whole controversy. The 7th article of that instrument reads as follows: “The ratification of the Conventions of nine States shall be sufficient for the establishment of the Constitution between the States so ratifying the same.” How is it possible to reconcile this short, explicit, and unambiguous provision with the theory I am combating? The Preamble, as explained [35] by the Northern consolidationists, and this article, cannot possibly stand together. It is not possible that the people of the United States in the aggregate, as one nation, ‘ordained and established’ the Constitution, and that the States ordained and established it at the same time; for there was but one set of Conventions called, and these Conventions were called by the States, and acted in the names of the States.
Mr. Madison did, indeed, endeavor to have the ratification made in both modes, but his motion in the Convention to this effect failed, as we have seen. Further, how could the Constitution be binding only between the States that ratified it, if it was not ratified—that is, not ‘ordained and established’ —by them at all, but by the people of the United States in the aggregate? As remarked by Mr. Madison, in the Virginia Convention, a ratification by the people, in the sense in which this term is used by the Northern consolidationists, would have bound all the people, and there would have been no option left the dissenting States. But the 7th article says that they shall have an option, and that the instrument is to be binding only between such of them as ratify it.
With all due deference, then, to others who have written upon this vexed question, and who have differed from me in opinion, I must insist that the proof is conclusive that the Constitution is a compact between the States; and this being so, we have the admission of both Mr. Webster and Justice Story that any one of the States may withdraw from it at pleasure.
