"We are induced to hope that we shall not be altogether considered as foreigners having no particular affinity or connection with the United States; but that trade and commerce, upon which the prosperity of this State much depends, will be preserved as free and open between this State and the United States, as our different situations at present can possibly admit....
"We feel ourselves attached by the strongest ties of friendship, kindred, and interest, to our sister States; and we can not, without the greatest reluctance, look to any other quarter for those advantages of commercial intercourse which we conceive to be more natural and reciprocal between them and us.
"I am, at the request and in behalf of the General Assembly, your most obedient, humble servant.
(Signed) "John Collins, Governor.
"His Excellency, the President of the United States."
[American State Papers, Vol. I, Miscellaneous.]
[pg 114]
CHAPTER IV.
The Constitution not adopted by one People "in the Aggregate."-A Great Fallacy exposed.-Mistake of Judge Story.-Colonial Relations.-The United Colonies of New England.-Other Associations.-Independence of Communities traced from Germany to Great Britain, and from Great Britain to America.-Mr. Everett's "Provincial People."-Origin and Continuance of the Title "United States."-No such Political Community as the "People of the United States."
The historical retrospect of the last three chapters and the extracts from the records of a generation now departed have been presented as necessary to a right understanding of the nature and principles of the compact of 1787, on which depended the questions at issue in the secession of 1861 and the contest that ensued between the States.
We have seen that the united colonies, when they declared their independence, formed a league or alliance with one another as "United States." This title antedated the adoption of the Articles of Confederation. It was assumed immediately after the Declaration of Independence, and was continued under the Articles of Confederation; the first of which declared that "the style of this confederacy shall be 'The United States of America'"; and this style was retained-without question-in the formation of the present Constitution. The name was not adopted as antithetical to, or distinctive from, "confederate," as some seem to have imagined. If it has any significance now, it must have had the same under the Articles of Confederation, or even before they were adopted.
It has been fully shown that the States which thus became and continued to be "united," whatever form their union assumed, acted and continued to act as distinct and sovereign political communities. The monstrous fiction that they acted as one people "in their aggregate capacity" has not an atom of fact to serve as a basis.
To go back to the very beginning, the British colonies never constituted one people. Judge Story, in his "Commentaries" on the Constitution, seems to imply the contrary, though he shrinks from a direct assertion of it, and clouds the subject by a confusion [pg 115] of terms. He says: "Now, it is apparent that none of the colonies before the Revolution were, in the most large and general sense, independent or sovereign communities. They were all originally settled under and subjected to the British Crown." And then he proceeds to show that they were, in their colonial condition, not sovereign-a proposition which nobody disputed. As colonies, they had no claim, and made no pretension, to sovereignty. They were subject to the British Crown, unless, like the Plymouth colony, "a law unto themselves," but they were independent of each other-the only point which has any bearing upon their subsequent relations. There was no other bond between them than that of their common allegiance to the Government of the mother-country. As an illustration of this may be cited the historical fact that, when John Stark, of Bennington memory, was before the Revolution engaged in a hunting expedition in the Indian country, he was captured by the savages and brought to Albany, in the colony of New York, for a ransom; but, inasmuch as he belonged to New Hampshire, the government of New York took no action for his release. There was not even enough community of feeling to induce individual citizens to provide money for the purpose.
There were, however, local and partial confederacies among the New England colonies, long before the Declaration of Independence. As early as the year 1643 a Congress had been organized of delegates from Massachusetts, Plymouth, New Haven, and Connecticut, under the style of "The United Colonies of New England." The objects of this confederacy, according to Mr. Bancroft, were "protection against the encroachments of the Dutch and French, security against the tribes of savages, the liberties of the gospel in purity and in peace."35 The general affairs of the company were intrusted to commissions, two from each colony; but the same historian tells us that "to each its respective local jurisdiction was carefully reserved," and he refers to this as evidence that the germ-principle of State-rights was even then in existence. "Thus remarkable for unmixed simplicity" (he proceeds) "was the form of the first confederated [pg 116] government in America.... There was no president, except as a moderator of its meetings, and the larger State [sic], Massachusetts, superior to all the rest in territory, wealth, and population, had no greater number of votes than New Haven. But the commissioners were in reality little more than a deliberative body; they possessed no executive power, and, while they could decree a war and a levy of troops, it remained for the States to carry their votes into effect."36
This confederacy continued in existence for nearly fifty years. Between that period and the year 1774, when the first Continental Congress met in Philadelphia, several other temporary and provisional associations of colonies had been formed, and the people had been taught the advantages of union for a common purpose; but they had never abandoned or compromised the great principle of community independence. That form of self-government, generated in the German forests before the days of the Caesars, had given to that rude people a self-reliance and patriotism which first checked the flight of the Roman eagles, which elsewhere had been the emblem of their dominion over the known world. This principle-the great preserver of all communal freedom and of mutual harmony-was transplanted by the Saxons into England, and there sustained those personal rights which, after the fall of the Heptarchy, were almost obliterated by the encroachments of Norman despotism; but, having the strength and perpetuity of truth and right, were reasserted by the mailed hands of the barons at Runnymede for their own benefit and that of their posterity. Englishmen, the early settlers, brought this idea to the wilds of America, and it found expression in many forms among the infant colonies.
Mr. Edward Everett, in his Fourth-of-July address, delivered in New York in 1861, following the lead of Judge Story, and with even less caution, boldly declares that, "before their independence of England was asserted, they [the colonies] constituted a provincial people." To sustain this position-utterly contrary to all history as it is-he is unable to adduce any valid American authority, but relies almost exclusively upon loose expressions employed in debate in the British Parliament about [pg 117] the period of the American Revolution-such as "that people," "that loyal and respectable people," "this enlightened and spirited people," etc., etc. The speakers who made use of this colloquial phraseology concerning the inhabitants of a distant continent, in the freedom of extemporaneous debate, were not framing their ideas with the exactitude of a didactic treatise, and could little have foreseen the extraordinary use to be made of their expressions nearly a century afterward, in sustaining a theory contradictory to history as well as to common sense. It is as if the familiar expressions often employed in our own time, such as "the people of Africa," or "the people of South America," should be cited, by some ingenious theorist of a future generation, as evidence that the subjects of the Khedive and those of the King of Dahomey were but "one people," or that the Peruvians and the Patagonians belonged to the same political community.
Mr. Everett, it is true, quotes two expressions of the Continental Congress to sustain his remarkable proposition that the colonies were "a people." One of these is found in a letter addressed by the Congress to General Gage in October, 1774, remonstrating against the erection of fortifications in Boston, in which they say, "We entreat your Excellency to consider what a tendency this conduct must have to irritate and force a free people, hitherto well disposed to peaceable measures, into hostilities." From this expression Mr. Everett argues that the Congress considered themselves the representatives of "a people." But, by reference to the proceedings of the Congress, he might readily have ascertained that the letter to General Gage was written in behalf of "the town of Boston and Province of Massachusetts Bay," the people of which were "considered by all America as suffering in the common cause for their noble and spirited opposition to oppressive acts of Parliament." The avowed object was "to entreat his Excellency, from the assurance we have of the peaceable disposition of the inhabitants of the town of Boston and of the Province of Massachusetts Bay, to discontinue his fortifications."37 These were the "people" referred to by the Congress; and the children of the Pilgrims, [pg 118] who occupied at that period the town of Boston and Province of Massachusetts Bay, would have been not a little astonished to be reckoned as "one people," in any other respect than that of the "common cause," with the Roman Catholics of Maryland, the Episcopalians of Virginia, the Quakers of Pennsylvania, or the Baptists of Rhode Island.
The other citation of Mr. Everett is from the first sentence of the Declaration of Independence: "When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another," etc., etc. This, he says, characterizes "the good people" of the colonies as "one people."
Plainly, it does no such thing. The misconception is so palpable as scarcely to admit of serious answer. The Declaration of Independence opens with a general proposition. "One people" is equivalent to saying "any people." The use of the correlatives "one" and "another" was the simple and natural way of stating this general proposition. "One people" applies, and was obviously intended to apply, to all cases of the same category-to that of New Hampshire, or Delaware, or South Carolina, or of any other people existing or to exist, and whether acting separately or in concert. It applies to any case, and all cases, of dissolution of political bands, as well as to the case of the British colonies. It does not, either directly or by implication, assert their unification, and has no bearing whatever upon the question.
When the colonies united in sending representatives to a Congress in Philadelphia, there was no purpose-no suggestion of a purpose-to merge their separate individuality in one consolidated mass. No such idea existed, or with their known opinions could have existed. They did not assume to become a united colony or province, but styled themselves "united colonies"-colonies united for purposes of mutual counsel and defense, as the New England colonies had been united more than a hundred years before. It was as "United States"-not as a state, or united people-that these colonies-still distinct and politically independent of each other-asserted and achieved their independence of the mother-country. As "United States" [pg 119] they adopted the Articles of Confederation, in which the separate sovereignty, freedom, and independence of each was distinctly asserted. They were "united States" when Great Britain acknowledged the absolute freedom and independence of each, distinctly and separately recognized by name. France and Spain were parties to the same treaty, and the French and Spanish idioms still express and perpetuate, more exactly than the English, the true idea intended to be embodied in the title-les etats Unis, or los Estados Unidos-the States united.
It was without any change of title-still as "United States"-without any sacrifice of individuality-without any compromise of sovereignty-that the same parties entered into a new and amended compact with one another under the present Constitution. Larger and more varied powers were conferred upon the common Government for the purpose of insuring "a more perfect union"-not for that of destroying or impairing the integrity of the contracting members.
The point which now specially concerns the argument is the historical fact that, in all these changes of circumstances and of government, there has never been one single instance of action by the "people of the United States in the aggregate," or as one body. Before the era of independence, whatever was done by the people of the colonies was done by the people of each colony separately and independently of each other, although in union by their delegates for certain specified purposes. Since the assertion of their independence, the people of the United States have never acted otherwise than as the people of each State, severally and separately. The Articles of Confederation were established and ratified by the several States, either through conventions of their people or through the State Legislatures. The Constitution which superseded those articles was framed, as we have seen, by delegates chosen and empowered by the several States, and was ratified by conventions of the people of the same States-all acting in entire independence of one another. This ratification alone gave it force and validity. Without the approval and ratification of the people of the States, it would have been, as Mr. Madison expressed it, "of no more consequence than the [pg 120] paper on which it was written." It was never submitted to "the people of the United States in the aggregate," or as a people. Indeed, no such political community as the people of the United States in the aggregate exists at this day or ever did exist. Senators in Congress confessedly represent the States as equal units. The House of Representatives is not a body of representatives of "the people of the United States," as often erroneously asserted; but the Constitution, in the second section of its first article, expressly declares that it "shall be composed of members chosen by the people of the several States."
Nor is it true that the President and Vice-President are elected, as it is sometimes vaguely stated, by vote of the "whole people" of the Union. Their election is even more unlike what such a vote would be than that of the representatives, who in numbers at least represent the strength of their respective States. In the election of President and Vice-President the Constitution (Article II) prescribes that "each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors" for the purpose of choosing a President and Vice-President. The number of these electors is based partly upon the equal sovereignty, partly upon the unequal population of the respective States.
It is, then, absolutely true that there has never been any such thing as a vote of "the people of the United States in the aggregate"; no such people is recognized by the Constitution; and no such political community has ever existed. It is equally true that no officer or department of the General Government formed by the Constitution derives authority from a majority of the whole people of the United States, or has ever been chosen by such majority. As little as any other is the United States Government a government of a majority of the mass.
Footnote 35: (return) Bancroft's "History of the United States," vol. i, chap. ix.
Footnote 36: (return) Bancroft's "History of the United States," vol. i, chap. ix.
Footnote 37: (return) "American Archives," fourth series, vol. i, p. 908.
[pg 121]
CHAPTER V.
The Preamble to the Constitution.-"We, the People."
The preamble to the Constitution proposed by the Convention of 1787 is in these words:
"We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America."
The phraseology of this preamble has been generally regarded as the stronghold of the advocates of consolidation. It has been interpreted as meaning that "we, the people of the United States," as a collective body, or as a "nation," in our aggregate capacity, had "ordained and established" the Constitution over the States.
This interpretation constituted, in the beginning, the most serious difficulty in the way of the ratification of the Constitution. It was probably this to which that sturdy patriot, Samuel Adams, of Massachusetts, alluded, when he wrote to Richard Henry Lee, "I stumble at the threshold." Patrick Henry, in the Virginia Convention, on the third day of the session, and in the very opening of the debate, attacked it vehemently. He said, speaking of the system of government set forth in the proposed Constitution:
"That this is a consolidated government is demonstrably clear; and the danger of such a government is, to my mind, very striking. I have the highest veneration for those gentlemen [its authors]; but, sir, give me leave to demand, What right had they to say, We, the people? My political curiosity, exclusive of my anxious solicitude for the public welfare, leads me to ask, Who authorized them to speak the language of 'We, the people,' instead of We, the States? States are the characteristics and the soul of a confederation. If the States be not the agents of this [pg 122] compact, it must be one great consolidated national government of the people of all the States."38
Again, on the next day, with reference to the same subject, he said: "When I asked that question, I thought the meaning of my interrogation was obvious. The fate of this question and of America may depend on this. Have they said, We, the States? Have they made a proposal of a compact between States? If they had, this would be a confederation: it is otherwise most clearly a consolidated government. The question turns, sir, on that poor little thing-the expression, 'We, the people,' instead of the States of America."39
The same difficulty arose in other minds and in other conventions.
The scruples of Mr. Adams were removed by the explanations of others, and by the assurance of the adoption of the amendments thought necessary-especially of that declaratory safeguard afterward embodied in the tenth amendment-to be referred to hereafter.
Mr. Henry's objection was thus answered by Mr. Madison:
"Who are parties to it [the Constitution]? The people-but not the people as composing one great body; but the people as composing thirteen sovereignties: were it, as the gentleman [Mr. Henry] asserts, a consolidated government, the assent of a majority of the people would be sufficient for its establishment, and as a majority have adopted it already, the remaining States would be bound by the act of the majority, even if they unanimously reprobated it: were it such a government as is suggested, it would be now binding on the people of this State, without having had the privilege of deliberating upon it; but, sir, no State is bound by it, as it is, without its own consent. Should all the States adopt it, it will be then a government established by the thirteen States of America, not through the intervention of the Legislatures, but by the people at large. In this particular respect the distinction between the existing and proposed governments is very material. The existing system has been derived from the dependent, derivative authority of the Legislatures of the [pg 123] States, whereas this is derived from the superior power of the people."40
It must be remembered that this was spoken by one of the leading members of the Convention which formed the Constitution, within a few months after that instrument was drawn up. Mr. Madison's hearers could readily appreciate his clear answer to the objection made. The "people" intended were those of the respective States-the only organized communities of people exercising sovereign powers of government; and the idea intended was the ratification and "establishment" of the Constitution by direct act of the people in their conventions, instead of by act of their Legislatures, as in the adoption of the Articles of Confederation. The explanation seems to have been as satisfactory as it was simple and intelligible. Mr. Henry, although he fought to the last against the ratification of the Constitution, did not again bring forward this objection, for the reason, no doubt, that it had been fully answered. Indeed, we hear no more of the interpretation which suggested it, from that period, for nearly half a century, when it was revived, and has since been employed, to sustain that theory of a "great consolidated national government" which Mr. Madison so distinctly repudiated.
But we have access to sources of information, not then available, which make the intent and meaning of the Constitution still plainer. When Mr. Henry made his objection, and Mr. Madison answered it, the journal of the Philadelphia Convention had not been published. That body had sat with closed doors, and among its rules had been the following:
"That no copy be taken of any entry on the journal during the sitting of the House, without the leave of the House.
"That members only be permitted to inspect the journal.
"That nothing spoken in the House be printed, or otherwise published or communicated, without leave."41
We can understand, by reference to these rules, how Mr. Madison should have felt precluded from making allusion to [pg 124] anything that had occurred during the proceedings of the Convention. But the secrecy then covering those proceedings has long since been removed. The manuscript journal, which was intrusted to the keeping of General Washington, President of the Convention, was deposited by him, nine years afterward, among the archives of the State Department. It has since been published, and we can trace for ourselves the origin, and ascertain the exact significance, of that expression, "We, the people," on which Patrick Henry thought the fate of America might depend, and which has been so grossly perverted in later years from its true intent.
The original language of the preamble, reported to the Convention by a committee of five appointed to prepare the Constitution, as we find it in the proceedings of August 6, 1787, was as follows:
"We, the people of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, do ordain, declare, and establish, the following Constitution for the government of ourselves and our posterity."
There can be no question here what was meant: it was "the people of the States," designated by name, that were to "ordain, declare, and establish" the compact of union for themselves and their posterity. There is no ambiguity nor uncertainty in the language; nor was there any difference in the Convention as to the use of it. The preamble, as perfected, was submitted to vote on the next day, and, as the journal informs us, "it passed unanimously in the affirmative."
There was no subsequent change of opinion on the subject. The reason for the modification afterward made in the language is obvious. It was found that unanimous ratification of all the States could not be expected, and it was determined, as we have already seen, that the consent of nine States should suffice for the establishment of the new compact "between the States so ratifying the same." Any nine would be sufficient to put the proposed government in operation as to them, thus leaving the [pg 125] remainder of the thirteen to pursue such course as might be to each preferable. When this conclusion was reached, it became manifestly impracticable to designate beforehand the consenting States by name. Hence, in the final revision, the specific enumeration of the thirteen States was omitted, and the equivalent phrase "people of the United States" inserted in its place-plainly meaning the people of such States as should agree to unite on the terms proposed. The imposing fabric of political delusion, which has been erected on the basis of this simple transaction, disappears before the light of historical record.
Could the authors of the Constitution have foreseen the perversion to be made of their obvious meaning, it might have been prevented by an easy periphrasis-such as, "We, the people of the States hereby united," or something to the same effect. The word "people" in 1787, as in 1880, was, as it is, a collective noun, employed indiscriminately, either as a unit in such expressions as "this people," "a free people," etc., or in a distributive sense, as applied to the citizens or inhabitants of one state or country or a number of states or countries. When the Convention of the colony of Virginia, in 1774, instructed their delegates to the Congress that was to meet in Philadelphia, "to obtain a redress of those grievances, without which the people of America can neither be safe, free, nor happy," it was certainly not intended to convey the idea that the people of the American Continent, or even of the British colonies in America, constituted one political community. Nor did Edmund Burke have any such meaning when he said, in his celebrated speech in Parliament, in 1775, "The people of the colonies are descendants of Englishmen."