THE CONSTITUTIONAL CONVENTION INTENDED NATIONALITY.

Let us now retrace our steps and see what took place in the convention that made the Constitution, and what those that made it intended. Fortunately we have the journals of the convention that framed the Constitution; the minutes, until he left, of Mr. Yates, a delegate from the State of New York; and Madison’s full and careful report of all the proceedings, debates, and votes. From these sources we shall see that the makers intended, and that they considered they had made, a perpetual, consolidated, National Government.

The convention was called to amend the articles of the confederacy, and to it were sent most of the distinguished men of the country. The State of Virginia took an early and important part in the formation of the new government. Before the meeting of the convention, Madison wrote to Edmund Randolph, one of the delegates, that it would be well for him to prepare some propositions from Virginia, he in his letter suggesting what they should be. Immediately after the organization of the convention after the choice of Washington as the presiding officer and the establishing of standing rules, Randolph introduced a series of resolutions, which had been considered by his colleagues and were known in the convention as those of Virginia. They were in substance, that the articles of confederation should be corrected and enlarged; that the rights of suffrage in the national Legislature ought to be proportioned to the quotas of contribution, or to the number of free inhabitants; that the Legislature should consist of two branches, the first branch to be elected by the people of every State; that the Legislature should have supreme rights with coercive power against any member failing to perform its duty, and that there should be a national Executive and Judiciary.

These resolutions were referred to the next meeting. At that meeting Randolph, at the suggestion of Gouverneur Morris, who said that his subsequent resolutions did not agree with the first, moved that this first resolution, which was that the articles of confederation should be corrected and enlarged, should be postponed, which was unanimously agreed to. Randolph then proposed three other resolutions, the first two that a union merely federal and treaties between the States as sovereigns would be insufficient. The convention, after debate and other propositions, considering the first two resolutions unnecessary, passed the third, which was: “That a National Government ought to be established consisting of a supreme legislative, executive, and judiciary.” All the States present voted ay, Connecticut only no, New York divided—Hamilton ay, Yates no.[20] Yates in his minutes says Randolph in first proposing his resolutions, “candidly confessed they were not intended for a federal government; and that he meant a strong consolidated union.” Mr. Morris on the 30th observed that Randolph’s preamble as to amending the articles of the confederacy was unnecessary, as the subsequent resolutions would not agree with it.[21]

The votes in the convention were as in the confederacy, each State had one and voted as a whole. If the delegation of a State was equally divided, its vote was lost.

By the 13th of June the Virginia resolutions had been considered and passed with changes and amendments,[22] the first resolution as changed, being that a national government ought to be established; the plan as to representation (Resolves 7 and 8), being that the representation in the two branches of the Legislature should be in accordance with the free population and three fifths of all other persons (slaves), and excepting Indians.

Further action on this report was deferred to June 14th at the request of Mr. Patterson, who then offered a plan called that of New Jersey, formed by the deputations of Connecticut, New York, New Jersey, and Delaware, preserving the articles of the confederation, one Legislature, the equal vote of each State, but revising, correcting, and enlarging the conferred powers so as to render them “adequate to the exigencies of government and the preservation of the Union.” In the resolutions the Executive, if any State or any body of men in the State should oppose the execution of the acts or treaties of the government, was to call forth the power of the States to enforce and compel an obedience.[23] The ratification was to be by the Legislatures of the States; that of the Virginia plan was to be by the people. The objection that the delegates to the convention were exceeding their authority, which was only to amend the articles of the confederation, was again brought up; the discussion whether the government should be national or a confederacy was again renewed. It was pointed out as a fatal objection by Madison, Hamilton (who then spoke for the first time), and others, that under a confederacy the coercing of a State to pay its quota or compelling it to obey would in fact be a civil war, where the militia of other States would have to march against the delinquent power. Hamilton said he neither liked the Virginia nor the New Jersey plan; he praised the constitutional monarchy of Great Britain as the most perfect government. He was particularly opposed to Patterson’s plan, “being fully convinced that no amendment of the confederation leaving the States in possession of their sovereignty could possibly answer the purpose.”[24] He stated the plan he should prefer: a general government, with an executive and a senate for life or good behavior, the general government to have the appointment of the governors of each State, who should have a veto over the State laws.[25] He wished the States abolished as States, but admitted the necessity of their having subordinate jurisdiction.[26] He was aware that others did not approve of his plan, nor would they, he thought, of that of Virginia, but they might finally come to it. He thought universal suffrage a bad principle of government. He apparently did not know how strongly the democratic feeling existed amongst the people of this country; nor perhaps appreciate the strength of a government that has at its back the will and brute power of the majority of fighting men, as shown in our civil war. He made that unfortunate speech, afterwards used against him, that the people were getting tired of an excess of democracy, “and what is even the Virginia plan but pork still, with a little change of the sauce.”[27]

As no one seconded Hamilton’s plan and he did not urge it, the question before the convention was between Mr. Patterson’s plan enlarging the power of the confederacy or the national one of Virginia. The former, after much debate, was laid aside, only New York and New Jersey voting no. The Virginia resolutions were taken up again by a vote of seven States ay, to three nay, Maryland divided, which was a vote, so Madison says, that they “should be adhered to as preferable to those of Mr. Patterson.”[28]

That the word national was dropped from the resolutions of Virginia has been dwelt upon by Southern writers, and by Calhoun at length in his speech of 1833, as a proof that the national idea was abandoned. No such conclusion can be drawn from the way in which it was done. On June 20th, the day after the Virginia resolutions were again taken up and adopted, the first resolution being before the House, Mr. Ellsworth moved it should read: “That the government of the United States ought to consist of a supreme legislative, executive, and judiciary.” This alteration, he said would drop the word national and retain the proper title, “The United States.” Mr. Randolph said he did not object, and it was unanimously acquiesced in.

The second resolution, that the Legislature should consist of two branches, was taken up. Mr. Lansing moved instead, that “legislation be vested in the United States in Congress,” and again urged a confederacy. On this George Mason,[29] to whom Mr. Lodge refers, said he did not expect this point to be re-agitated, and compared a national government to a confederate one. He spoke, “with horror,” of the necessity that the latter would have of collecting its taxes by compulsion over States, of marching the militia of one State against another to enforce taxes; rebellion was the only case where military force should be exerted against citizens. In the early days of the convention he had urged that the new government should be one over individuals not States. He would not, however, abolish the State governments or render them absolutely insignificant. This second resolution was carried seven States to three, Maryland divided.[30]

The next resolution, that the first branch of the Legislature should be elected by the people, was supported by Mason, and Wilson said he considered it the corner-stone of the fabric; only New Jersey voted against it, Maryland divided.

On the resolution of how the second branch of the Legislature should be elected—by the State Legislature or the people,—Virginia voted that it should be by the people.[31]

That the representation in the first branch should be in proportion to the people was established. Then June 29th began the great controversy in the convention of how the representation should be in the second branch, whether in proportion to population or by State.

When this discussion took place, the three great States were Virginia, Massachusetts, and Pennsylvania. Virginia then comprised the territory which is now West Virginia and Kentucky, and, including her slaves, had the largest population. Massachusetts, instead of being insignificant in territory, had the large area of Maine, which was made into a separate State in 1820. Massachusetts had the largest white population and had furnished more soldiers than any other State in the Revolution; and it was probably for this reason that Madison alluded to it as the most powerful State. New York had then about the same population that Connecticut and Maryland had, and from apparent want of foresight as to its future great and immediate increase in population and power took a prominent part with the smaller States that wished representation should be by an equal vote in both branches of the new Legislature. The representatives of Connecticut, Sherman and Ellsworth, were also strenuously in favor of equality of States. Ellsworth, in reply to Madison’s attack on Connecticut for refusing compliance to federal requisitions, excused his State by reason of her distress and impoverishment by her exertions during the revolutionary war, and asserted that the muster rolls will show she had more troops in the field in the revolutionary war than even Virginia, and he appealed to the presiding officer, Washington, as to the truth of his statement.[32] Georgia, then estimated to be the smallest in population, trusting to the future settlement of its claimed large territory extending from the sea-coast to the Mississippi, usually voted with the larger States.[33] Mr. Bedford, of Delaware, asserted that South Carolina, puffed up with the possession of her wealth and negroes, and North Carolina were both united with the great States, and for the smaller States threatened, “sooner than be ruined, there are foreign powers who will take us by the hand.”[34] For this he was very justly rebuked by Rufus King, of Massachusetts. It was hard for the smaller States having an equal vote in the Confederacy to change it for one proportioned to inhabitants. It was estimated that Delaware would have but one representative in each branch to Virginia’s sixteen. The argument of the smaller States was that Virginia, Massachusetts, and Pennsylvania would combine to crush the other States. Madison replied that their interests were so different there was no fear of this. Massachusetts’ product was fish; Pennsylvania’s, flour; Virginia’s, tobacco. He predicted that the struggle, when it came, would be between the Southern States with their interests as exporters and the Northern commercial States. The opinion was pretty generally entertained that any division that might arise would be between North and South.

The dispute between the greater and smaller States was finally settled by the provision that all money bills should originate in the first branch of the Legislature, that direct taxation should be in proportion to representation in that branch, and that there should be an equal representation in the upper House, the vote however being per capita and not by States. The final vote on this settlement was almost unanimous, only one State, Maryland, in the negative.[35]

It has been argued by Davis, Stephens, and others, that this equal representation of the States in the Senate was an establishment of a confederacy, and it has been a stumbling-block in the way of many constitutional commentators who have considered it a compromise between a national and a confederate government. It is a compromise of the right of representation in one branch only of the legislative department of the government; but it is no compromise in the powers granted. The powers granted to the government are of supremacy, legislative, executive, and judicial, over State and State constitutions and State judiciaries. If there had been rotten boroughs established by the Constitution like those then in Great Britain, if Delaware and Rhode Island had been given double the representation that Virginia had, or if every slave of the South had counted for two white men in the free States, the granted powers of the government would have been none the less supreme and national, as the Constitution itself declares, and as they in reality are. Scotland is not a sovereign nation because her peers elect twelve of their number to the House of Lords of the government of Great Britain. Oxford and Cambridge Colleges are not sovereign powers because they choose representatives to the House of Commons. Charles Pinckney of South Carolina with reason said: “Give New Jersey an equal vote and she will dismiss her scruples and concur in the national system.”

The other resolutions of Virginia, except those relating to an executive, had been acted upon, when Elbridge Gerry of Massachusetts moved, that “the proceedings of the convention for the establishing of a national government” “be referred to a committee to prepare and report a Constitution”; a committee of five was agreed upon, no one objecting,[36] no one denying that the government was a national one. From the 23d to the 26th of July the plan of the Executive was considered and settled, and was unanimously referred to the Committee of Detail, that of five already appointed to prepare and report the Constitution. The convention adjourned until August 6th, to give the necessary time to their committee. The resolves then passed are stated in Elliot’s Debates.[37]

The first was, that the government of the United States ought to consist of a supreme legislative, judiciary, and executive. The second, third, fourth, and fifth were the resolves as to the two branches of the Legislature. The sixth was: “Resolved, that the national Legislature ought to possess the legislative rights vested in Congress by the Confederation; and moreover to legislate in all cases for the general interests of the Union,” etc., etc.

In the 12th, 13th, 14th, 15th, 16th, 20th, and 23d—the last, the executive, the legislative, the judiciary, and the government were termed national. These are the resolutions passed by the convention, all declaring the government and every branch of it was national. This was the plan agreed on; no changes were made except of detail and for euphony, and some modifications.

On August 6th the Committee of Detail reported the Constitution; a printed copy was furnished to each member.[38] The preamble was, “We, the people of the States of New Hampshire, Massachusetts,” then follow the names of all the other States, “do ordain, declare, and establish the following Constitution for the government of ourselves and our posterity.”

“Article I. The style of the government shall be the United States of America.”

“Article II. The government shall consist of supreme legislative, executive, and judicial powers.”

By Article X. the executive was vested in a president, to hold his office for seven years, but not re-eligible, whose title was to be “His Excellency.”

It will be noticed that the preamble had the declaration of perpetuity, that we, the people, made it for “our posterity.”

The Constitution was then taken up by its separate articles, and they were minutely and thoroughly discussed and somewhat altered. Each was again passed, taking all the time from the 7th of August until September 12th.

The definition of treason was considered at great length, and in the debate it was shown that States might punish for acts against their authority under the name of treason or under other names. Madison thought the definition too narrow; Mason was in favor of extending the definition and adopting the statute of Edward III.[39] The record of the convention shows this article punishing treason was unanimously agreed to, notwithstanding the objection Luther Martin said he made.[40]

The supremacy of the Constitution and the laws of the United States over the States and all citizens and State judiciary was passed, no one opposing, August 23d.[41]

The provisions relating to the office of President and his powers and duties were much discussed and changed, and the title of “His Excellency” dropped.

The amended draft of the Constitution was submitted to a Committee of Style and Arrangement, of which Gouverneur Morris was chairman, and they changed the preamble to, “We, the people of the United States,” from that of “We, the people of New Hampshire,” etc.; they inserted the words, “in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty,” retaining that it was to ourselves and our posterity, that we do ordain and establish this Constitution of the United States of America. It has been argued and strenuously claimed that this change to “We, the people of the United States,” was one made for euphony at the end of the session of the convention, and has no force as a declaration that it was made by the people. But it will be seen it took the place of one as explicit, one declaring it was by the people of every State and for themselves and posterity. It was necessary to drop the name of each State, as the Constitution was to be obligatory only on the people of those States adopting it. This change was not objected to by any one. The convention considered this final draft from the 12th to the 17th of September, and made some changes, when it was signed by all the delegates present except four.

The members of the convention evidently had studied for the occasion and were learned in the history of leagues and governments; they referred to Montesquieu, to Holland, Swiss Cantons, United Netherlands, Poland, Amphictyonic Conference, ArchÆan and Lycian Leagues, the Germanic body, and to Germany, from which the general principles of government came.

There was a diversity of opinion in the convention about the durability of the Union. Its rapid increase in population, its future greatness in territory (for the members believed in the acquisition of the Mississippi to its mouth), were foreseen and spoken of by many.

Some there were who thought, with the extreme difficulty of communication and intercourse, not knowing how steam navigation and the railroad would almost annihilate distance, that it would be impossible to keep such an immense territory and people together. Others congratulated themselves as the founders of a great empire. Sherman of Connecticut, on the question of limiting the number of new States to be admitted, from the fear of their controlling the old thirteen, replied: “We are providing for our posterity, our children and grandchildren, who are as likely to be citizens of new Western States as of the old States.”[42] No one suggested any dissolution by claim of right of secession.

When the supremacy and nationality of the intended government were settled, Yates and Lansing (who with Hamilton formed the delegation from New York) on July 3d left the convention, and in their letter to Governor Clinton,[43] stated that they did so because they were chosen to revise the Articles of the Confederation and that the principles of the Constitution sanctioned by the convention met with their “decided and unreserved dissent,” as would any system “which had in object the consolidation of the United States into one government”; and that “a persuasion that their further attendance would be fruitless and unavailing rendered them less solicitous to return.”

We find after equal representation in the Senate had been granted to the smaller States, that their delegates took a prominent part in enlarging and strengthening the powers of the General Government.

Luther Martin, who throughout the session of the convention had been the most able and persistent opponent to a national government, expressed his dissatisfaction at the close and was one of the four who refused to sign. The three Southern States, North and South Carolina and Georgia, as was stated in the convention, had exalted opinions of their future population, and had been often on the side of the larger States. They had obtained their wishes—representation for their slaves, the right to import them until 1808,[44] the prohibition of export duties on their rice, indigo, and tobacco, yielding only the taxation of imports.

General Charles Cotesworth Pinckney of South Carolina, towards the close of the convention, expressed the satisfaction of the South at the liberal conduct shown to them, and that it was for the interest of the weak Southern States to be united with the strong Eastern States, that the government should have the power of making commercial regulations, and that though he had had his prejudices against the Eastern States, “he had found them as liberal and candid as any men whatever.”[45]

Washington, the presiding officer, who had been advised by his best friends not to accept the nomination as a member of the convention, and who from a sense of duty assented to act, spoke but seldom.

At the close of the proceedings he urged an amendment that removed the objections of some members, which was agreed to unanimously.

Next to Washington, Franklin was perhaps the most prominent person in the country. His motions and suggestions did not generally meet with the approval of the convention, excepting perhaps in reference to the equality of representation in the Senate, where the committee appointed under his resolutions brought in a plan for a settlement. His witty remark, when the last members were signing, has taken its place in history. Looking towards the President’s chair, at the back of which a rising or setting sun had been painted, he observed to those around him that painters had found it difficult to distinguish a rising from a setting sun, that during the session, between his hopes and fears as to the issue, he would look at the sun behind the President and could not tell whether it was rising or setting, but now he knew that it was a rising one. Hamilton did not conceal his dislike to the plan adopted, but promised his ardent support. His strenuous labors to that end in the New York convention against the most persistent and determined opposition were finally crowned with success. Gerry of Massachusetts refused to sign; Gorham and Rufus King—who with Gerry had taken active parts in the discussion,—together with their colleague, Caleb Strong, signed. Madison and Blair alone signed for Virginia. Mason, though he had said he would bury his bones in the city rather than the convention should dissolve without doing anything,[46] and had been from the beginning in favor of a national government, declined to sign what he had been so instrumental in making; because he thought the great power given to the Senate of trying impeachment, of making treaties, of appointing ambassadors, judicial and other officers, would make an aristocracy of its members. He and Randolph, the one who brought the plan forward, thought the Constitution agreed on needed amendment and wished another convention. One cannot help thinking their decision might have been different, if Virginia had been allowed her proposed representation in the Senate in proportion to population.

We have already stated that the Constitution was sent to the Congress of the Confederacy and by them submitted to the State Legislatures, who all sanctioned it so far as to submit it to conventions chosen by the people. In each and every State the coming into the new government was ultimately decided by the people, and not by the State government.

In many of the States the adoption of the Constitution was pertinaciously and vehemently opposed on the ground of the great and excessive powers given to the new government, that might be destructive of the liberty of the people. The appointment of officers, and the power of the President with his command of an army and navy in peace as well as in war, the legislative rights of Congress with an unlimited right of taxation, were so great that eminent and prominent men expressed their belief that the government would end in a despotism.

In Pennsylvania, Wilson at great length explained the new form of government, stating “that by adopting this system we become a nation; at present we are not one.”[47] His labors in the State and the general conventions have been fully recognized by recent writers.

It was only after a long and heated discussion in the large convention of the then important State of Massachusetts, where were present, John Hancock, Fisher Ames, Rufus King, and Sam Adams, who reluctantly yielded consent, that the Constitution was adopted, the majority in favor being small.

In Virginia, which was the tenth State to come into the Union, Patrick Henry, who had declined the appointment to the general convention, objected because the Constitution said “We, the people,” instead of “We, the States”; and “if the States be not the agents of this compact, it must be one great consolidated national government of the people of all the States.”[48] “It had an awful squinting towards monarchy.” “The federal convention ought to have amended the old system.” George Mason objected because the Constitution had no bill of rights and would end in a monarchy or corrupt oppressive aristocracy, and the confederation be converted to one grand consolidated government.[49] The acceptance was ably argued and urged by Madison and others and Edmund Randolph, who had refused to sign, but had since come to the conclusion that the only chance of escape from the discredited, crumbling Confederacy was in adopting the new Constitution. He said in the beginning of the debate, “I shall endeavor to make the committee sensible of the necessity of establishing a national government. In the course of my argument I shall show the inefficacy of the confederation.”[50]

The acceptance of New York, her territory dividing the Central and Southern States from the Eastern, was considered all important. Her ratification of the Constitution came late. She was the eleventh State, and neglected to vote for President at Washington’s first election.

John Jay, the Minister for Foreign Affairs of the Congress of the United States, in an address to the people, plainly told them the new government was national. He said: “Friends and Fellow-Citizens—The convention concurred in opinion with the people, that a national government, competent to every national object, was indispensably necessary.”[51]

Hamilton, Jay, Chancellor and other Livingstons, Melanchthon Smith, and a number of leading citizens were members of the convention. Yates and Lansing, who were members of the general convention that made the Constitution, and Governor George Clinton strenuously and persistently opposed the ratification, alleging as the reason the danger from the great powers given to the General Government subverting those of the State.

This New York convention for a long time was opposed to the ratification. Hamilton, who was exceedingly zealous for it, wrote almost in despair to Madison, asking if a State could adopt the Constitution conditionally and afterwards withdraw from the Union if its proposed amendments were not adopted. Madison replied, that “a conditional ratification did not make a State a member of the Union. The Constitution requires an adoption in toto and forever. It has been so adopted by the other States. An adoption for a limited time would be as defective as of some articles only.” Hamilton did not question the correctness of this opinion; but New York was brought finally to giving her consent. Mr. Lansing’s two motions (which show that he thought the Union perpetual) of a conditional ratification with a bill of rights, and of a reservation of a right to withdraw from the Union after a certain number of years unless the amendments proposed should previously be submitted to a general convention, were negatived;[52] a similar conditional acceptance had been proposed in the Virginia convention and abandoned.

The proceedings in most of the conventions called by the several States are reported in Elliot’s Debates. In none of them was the theory advanced or suggested that a State had the power to secede from the government or decide as an independent sovereignty on the validity of the acts or laws of the new government. If the power to nullify was then supposed to exist, if the right of a State to leave at its will was thought of, why was it not then urged that nullification and secession were easy remedies if the Union should be or become oppressive? No one imagined that there was any such power remaining in the States. No one answered to the alleged fear of oppression and tyranny that the State could nullify or secede. Neither friend nor foe, as Webster said, claimed either.

On all occasions, in all the speeches, it was assumed as granted, that the consolidation of the States, as it was termed, was national and perpetual. Even in South Carolina the proceedings are conclusive on this point. The Constitution first came before the legislature on the question of submitting it to the people of the State. Charles Pinckney, who had also been a very prominent member of the general convention that made the Constitution, said: “He repeated that the necessity of having a government which should at once operate upon the people, and not upon the States, was conceived to be indispensable by every delegation present.”[53]

The question whether the States ever had individual sovereignty arose in the convention chosen for deciding on the ratification of the Constitution, and General Charles C. Pinckney[54] insisted that our independence came from the Declaration of Independence made by the Congress of the Confederacy, wherein in the name of the good people of these colonies we were declared free and independent States. The separate independence and individual sovereignty of the several States was never thought of, not even mentioned by name in any part of it. The same objection in South Carolina as in other States to the Constitution as destructive of liberty was made. James Lincoln, a delegate from Ninety-six, said: “From a democratic you are rushing into an aristocratic government. Liberty! what is liberty? The power of governing yourselves. If you adopt this Constitution have you this power? No; you give it into the hands of a set of men who live one thousand miles distant from you.”[55]

The words of ratification of the States are also conclusive on these points. We will take the three important States whose acceptance was for a long time doubtful. Massachusetts in her pious and reverential ratification used the word compact, which numerous Southern writers, Davis, Stephens, and others, bring up as proof that Massachusetts considered the Constitution a mere confederacy and not a government.

To refute this it is but necessary to give the very words used:

It is the people of the United States, not the States, nor the people of the State of Massachusetts, that enter into this explicit and solemn compact with each other for a more perfect union. As we have said before, a compact may be for a national government or for a confederacy. If the convention understood that it was States making a confederacy, they would have said the people of the State, and not the people of the United States.

We come next to Virginia’s acceptance of the Constitution, which, to Calhoun’s peculiar mind, was “a conditional one.” “A condition made in the interest of all the States, and of which any State could avail.”

The acceptance was made “in behalf of the people of Virginia”; the condition was, “that the powers granted under the Constitution being derived from the people of the United States may be resumed by them, whensoever the same shall be perverted to their injury or oppression,” and that “among other essential rights the liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified by any authority of the United States.”

It cannot be disputed that the convention, by this acceptance, understood and declared that there was thence but one nation; they accept the government in behalf of the people of Virginia; they acknowledge that the powers are derived from “the people of the United States”; and add, if the government be perverted to the injury and oppression of the people of the United States, they, the people of the United States, may resume the granted powers, not the people of Virginia or the State of Virginia. If the convention understood that they were making a compact between States that were to retain sovereignty, or the right to withdraw, it certainly would have said: if the United States Government be perverted to the injury of the States, then the State or sovereign State of Virginia or the people of the State could resume the powers granted by her.

Clinton is one of the four persons whom Mr. Lodge cites as of the opinion that the Union was a dissoluble, precarious, and temporary affair. The letter of Madison to Hamilton—we have before mentioned—in relation to the perpetuity of the Union and that there could be no conditional acceptance, is well known to constitutional writers and historians, and regarded as of the highest authority; but the more emphatic and decisive declaration of the convention of New York, in its circular-letter to the governors of the different States, signed by Clinton, its President, and ordered unanimously, seems to have escaped all notice. In that letter he and they state to the governor of each State the ratification of the Constitution by New York and her recommendation of certain amendments. He and they add, none of these amendments originated in local views.

Can anything be more explicit that every one, everywhere, at that time understood the Union was perpetual, than this unanimous address of the convention of New York saying so to all the other States, and the submissive request that they would amend the Constitution in accordance with their wishes?

The conventions of Massachusetts, Virginia, and New York passed resolutions recommending what they considered important necessary amendments to the Constitution. These resolutions and the recommendations of other States were considered in the first Congress, and ten articles, commonly called the Bill of Rights, were passed, and duly ratified by the legislatures of the States. These articles are safeguards against the feared tyrannical grants that had been given, and are all restrictive of the powers of the United States over its citizens, not of its powers over States. They are: that the people should have the right of petition; and “a well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed.” This shows how deep and serious the States believed the danger to be from the great powers of the General Government with a standing army and navy.

Other amendments were, that no law should be passed abridging the freedom of speech or of the press, or of trial by jury in suits at common law where the amount involved exceeds twenty dollars; that there should be no established religion, and matters of that kind. None of these ten amendments give any powers to State governments. The final clause reserves all the powers not granted, “to the States respectively, or to the people,” not to the States and their people, or the people of the respective States; but to the people, putting the people as a whole.

Great stress has been laid by Calhoun and his followers on this clause, as giving power to the States. As the United States Government’s sovereignty is undoubtedly limited to the express grants of the Constitution, the powers not granted are in the States or people. There was no need of any reservation, except to allay the fears of those who erroneously believed that the Constitution gave unlimited power to the Union.

We have seen that in the discussions in the constitutional conventions it was denied that any separate State ever had or exercised sovereign powers. Judge Story, whose authority is as great as that of any legal writer, in his commentaries on the Constitution maintains this doctrine. Many of our earlier historians concur in this.

It is urged that originally we were one people of different colonies, subjects of the British Kingdom; our independence of that kingdom and existence as a power came from the declaration of the Congress of our combined government, in which we are called one people. No State ever acted separately in any sovereign capacity; we carried on the war, made peace, and treated with foreign countries as one nation. Even territory had been ceded to the Confederacy by the several States; and it was the Confederacy that passed the ordinance of 1787 abolishing slavery in the Northwest. The States had declared this Confederacy indissoluble. Webster, as we have seen, did not found his argument on the ground that the States never had sovereignty; he impliedly admitted the claimed independence, or sovereignty of the States, before the forming of the Union; it is safer to make this concession as Webster did. Each State had its choice to join the Union or to remain apart and become an independent sovereign power.

Our first chief-justice, John Jay, a most eminent jurist, a member of the New York convention, and one of the writers of the Federalist, in his decision in the case of Chisholm against the State of Georgia, where Georgia denied that a State could be sued, very clearly states how our government was formed and where the sovereignty is. He said: All the people of our country were subjects, every acre of land was held by grants from the Crown of Great Britain; the sovereignty passed from the Crown to the people, and a confederation of States was established as the basis of a general government. Then the people of the country made a new government saying, “We, the people of the United States, do ordain and establish this Constitution.” Every State constitution is a compact between the citizens to govern themselves in a certain manner, and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects in a certain manner.[57]

It has often been asserted and apparently is generally believed, that in the lapse of time the limited authority of the United States has been gradually extended, national powers assumed, and the whole fabric of government changed. An examination, however, of the laws passed by the earliest Legislatures shows a very liberal construction of the granted powers. Madison was a leader in the first Congress, he was through life a strict constructionist of the extent of the powers given by the Constitution. He informs us that no one doubted in that Congress that the United States had the power of levying duties for protection.[58] The want of such power was the very ground on which South Carolina passed the nullification acts of 1832. The preamble of the law of the first Congress, stating that the duties laid were for the encouragement and protection of manufactures, we have already cited. The same act made a discrimination in favor of imports of teas from China and India direct in ships belonging to citizens of the United States, allowed a drawback on dried and pickled fish and salted provisions in lieu of a drawback on the salt used in them. In the third session of that first Congress, an excise tax was laid on distilled spirits, and the Bank of the United States was incorporated—because of its utility to the government in the collection and transmitting of its revenue. Carriages were taxed in 1794. To the charter of the bank and the carriage-tax Madison and others objected as not within the granted powers. Also in 1794 sales of wines and liquors by retail and sales by auction were taxed. And Madison himself introduced a bill to make a post-road through the whole length of the States from Maine to Georgia.

The suit before referred to against the State of Georgia,[59] under the clause giving the United States Courts jurisdiction between a State and citizens of another State, is another piece of contemporary history and the strongest possible proof what was the understanding of that day. Georgia was sued by a citizen of South Carolina in a simple action of assumpsit, the legal term for a suit in which one would recover for the cost of a pair of shoes or a day’s wages. Georgia refused to defend the claim on the ground that she was a sovereign State.

The case came before the full bench of the Supreme Court, and was argued for the plaintiff by Edmund Randolph, then Attorney-General, the prominent member of the general convention and that of Virginia, who stated his opinion strongly against this claim of Georgia. The decision was against Georgia; Blair and Wilson, who were members of the convention that made the Constitution, the Chief-Justice Jay, and Cushing giving fully reasoned opinions. Iredell, a member of the North Carolina Convention, gave a dissenting opinion; it was not because he held that Georgia was a sovereign State as generally stated. He said as to sovereignty: “The United States are sovereign as to all the powers of government actually surrendered; each State in the Union is sovereign as to all the powers reserved.” This same doctrine, as to the sovereignty of a State in unsurrendered powers, was held by Marshall.[60]

The reason of Iredell’s dissent was that before the adoption of the Constitution a State could not be sued; that no suit now could be brought against a State, because Congress had not made a law providing for it. Further, he intimated it was not intended by the Constitution to give the right of a compulsory suit against a State. As to the sovereignty of the United States in the powers conferred to it, the court was unanimous.

In the same suit, Jay and Cushing maintained that the United States cannot be sued, a dictum since followed, though the Constitution gives jurisdiction to the courts where the United States are a party.

At this time all the States were greatly indebted and many suits were instituted against them, the United States Courts maintaining their jurisdiction over the States. The alarm was general, and to quiet the apprehension that was so extensively entertained, an amendment, taking from the United States judicial power in suits against a State, was adopted in Congress and afterwards ratified by the State Legislatures in 1798. That its motive was not to maintain the sovereignty of a State from the degradation supposed to attend a compulsory appearance before the tribunal of the nation may be inferred from the terms of the amendment. It left jurisdiction to the United States of controversies to which the United States shall be a party, of controversies between two or more States, between citizens of different States, between citizens of the same State claiming under grants of different States.[61]

Early in our history, in the second administration of Washington, a formidable, armed, organized resistance was made to the enforcement of the excise laws of the General Government in the western portion of Pennsylvania, which extended into a part of Virginia. It was computed that there were sixteen thousand men capable of bearing arms in the district in insurrection. Washington called out the militia of several of the States and, as Commander-in-chief, suppressed the revolt. The march of the troops was fatiguing and long, late in the fall, in rain and storms, which caused much suffering and, in the end, a good many deaths. The insurrection was crushed by the power of the General Government with promptness and vigor, much to the satisfaction of Washington and Hamilton then Secretary of the Treasury; it strengthened the government and the administration. Of the prisoners tried before the United States Court at Philadelphia two were found guilty of treason, who from some palliating circumstances were ultimately pardoned by the President.[62]

We have seen what were the opinions of the nature of the new government held by Hamilton, Mason, and Clinton, three of the persons Mr. Lodge named. There can be no doubt what Washington’s was. No one knew better than Washington, what a miserable condition the States, then petty in population and poor in resources, would be without a strong, indissoluble Union. Only one of the States, Virginia, had over half a million of inhabitants, nearly half slaves; two had about sixty thousand.

Washington, long before, on the disbanding of the army in 1783, wrote to the governors of the States that, according to the policy the States should adopt, depended whether the revolution was a blessing; and he put “first” among the essential requisites “an indissoluble union of the States under one federal head.”[63] In his address as president of the convention submitting the Constitution to the Congress of the States, he said: “In all our deliberations on this subject we kept steadily in our view that which appeared to us the greatest interest of every true American, the consolidation of the Union, in which is involved our prosperity, felicity, safety, perhaps our national existence.” In his farewell address, as President, to the people of the United States, in no less emphatic terms, he declared the importance and the success of the Union. He said: “The unity of Government, which constitutes you one people, is also now dear to you; it is justly so, for it is a main pillar in the edifice of your real independence—the support of your tranquillity at home, your peace abroad; of your safety; of your prosperity; of that very liberty which you so highly prize.”[64]

We have before stated, that at the institution of our government there was a great fear on the part of a portion of the people of its consolidation and the extension of its granted powers over those reserved to the States and people. It was not however until the administration of John Adams, about ten years after the government had gone into operation, that the power of a State to pass judgment on the validity of the acts of the United States was suggested. Those who had elected Adams as President called themselves Federalists, and, as is natural in those controlling the government, were in favor of a liberal construction of its powers. The name federal, taking its Latin derivation, refers to a bond uniting states; that bond may be, however, that of a confederacy or of a nation. Perhaps it was a misnomer for the party in favor of a broad national construction of the Constitution. The name has come into use, however, as descriptive of our government; it is very generally called the Federal Government. The proposed uniting of states, like the British colonies in the Pacific, is spoken of as federal. Indeed there is no substantial objection to terming any sort of government made by a constitution or agreement federal.

The party, at that time of our history, in opposition to the Federal, and who were in favor of a strict construction of the Constitution, called themselves by the national name of Republicans. When, however, they came into power under Jefferson, they were no longer strict constructionists.