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of the old Confederation. Admitting, as did both the friends and the enemies of the Constitution, the absolute necessity of a change, how far did the latter regard the change proposed by it as extending? It is perhaps not fair to take the charges, often mere calumnies, of its enemies, as decisive of its character and powers. But the charges made were made by the States Rights party of that day, and there seems a sort of justice in quoting that party against itself, when its arguments against the Constitution are at different times mutually destructive. Besides, if a presumption is to be indulged, it is, that there was greater honesty in the party when in the early days of our political bistory it charged that the proposed Constitution formed a national or a consolidated government, than when at a later day, and still in the interest of State autonomy, it charged that it founded a government not differing in principle from that of the Confederation.

The ablest opponent of the new Constitution was doubtless Patrick Henry of Virginia, and the main ground of his opposition was, that it was a scheme of a consolidated government. In the Convention of that State, he said,

“ And here I would make this inquiry of those worthy characters who composed a part of the late Federal Convention.

sure they were fully impressed with the necessity of forming a great consolidated government, instead of a confederation. 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; but, sir, give me leave to demand, what right they had 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 compact, it must be one great consolidated national government of the people of all the States.”

So, in the North Carolina Convention, Mr. Taylor said :“ This is a consolidation of all the States. Had it said, We the States, there would have been a federal intention in it. But, sir, it is clear that a consolidation is intended. Will any gentleman say, that a consolidated government will answer this coun

I am

try? ... I am astonished, that the servants of the legislature of North Carolina should go to Philadelphia and, instead of speaking of the State of North Carolina, should speak of the people. I wish to stop power as soon as possible, for they may carry their assumption of power to a more dangerous length. I wish to know where they found the power of saying, We the people, and consolidating the States.” 1

A similar charge was made in perhaps every one of the State Conventions called to pass upon the Constitution.

43. Now, it is not pretended, nor was it ever admitted by the friends of the Constitution, that that instrument in fact proposed a consolidated government. A consolidated government was defined by those who considered ours to be such, to be either, first, one “which puts the thirteen States into one,” 2 or, secondly, “ one that will transfer the sovereignty from the State governments to the general government.” 3 It is preposterous to apply either of those definitions to the system contained in the Constitution. The first does not apply, because, as stated by Mr. Wilson, in the Pennsylvania Convention, the proposed government “instead of placing the State governments in jeopardy, is founded on their existence. On this principle its organization depends; it must stand or fall, as the State governments are secured or ruined.”! The second definition applies no better, because the Constitution, whatever else it does, clearly does not transfer the sovereignty to the general government. · Nobody, so far as I am aware, ever supposed the source of all power in the United States to be the general government. But the friends of the Constitution did not and could not deny, that it comprised the outlines of a firm national government of extensive powers. The scheme it presented, however, had other than national features. It was, in a word, a project of a mixed character, partly federal, as not annihilating, but on the contrary weaving into its texture as an essential part, the States, shorn doubtless of much of their powers, but still powerful and dig. nified organizations; and partly national, as founding the whole system, in all its features, both federal and national, on the people of the United States, then first emerging from the chaos of political elements into distinct and unmistakable prominence as a society, to be, according to that Constitution, one and indivisible forever.1

1 Ell. Deb., Vol. III. pp. 22, 23. 2 Ell. Deb., Vol. II.


503-504. 3 Ibid. 4 Ibid.

§ 44. Such was the character of the Constitution as viewed by its earliest enemies and its earliest friends; it was partly federal and partly national. Though it was the original purpose, unquestionably, of some of the most important States, to found a government possessed of more national features than the one proposed, that purpose had been frustrated by the determined opposition of the smaller States in the Convention, and a compromise had been made by which the government was to be, in its foundation and in its principal features, national, but, so far as the continued existence of the States was concerned, federal, - a most happy compromise, and perhaps the only one ever made in America, which, on the whole, sound statesmanship ought not only not to reject, but ought to regard as the most valuable and admirable feature in our whole system.

45. As bearing on the question whether we are a nation or not, the facts stated above justify the following observations:

1. The fact that the government under which we live, founded by the existing Constitution, is national only in part, does not prove that we are not now, or were not, at and before the time of its formation, a nation. It is evidence merely that, if we had been a nation before we formed it, it had not been deemed expedient to establish a government in which the principle of our nationality should be prominently asserted; but, on the contrary, that the nation should forego its right to found a single establishment by which to govern itself as a whole, and should permit the peoples of the several States to exercise in ample measure, but still in subordination to it, self-government, so far as concerned their local affairs.

2. The fact, on the other hand, that the general government was, in its inception, national to any extent, is conclusive evidence that there was a nation back of it as its founder. It is impossible to escape from this conclusion. It is only a nation that can found a national government, or a government of which substantive features are national, to continue forever, for it is

1 See the masterly exposition of the mixed character of the government founded by the Constitution, made by Madison, in the Federalist, No. 39.

incredible that many distinct communities, not become one in sentiment, opinion, and physical circumstances, to such an extent as to render an entirely separate existence impossible, should ever consent to such a government. The leading points in the definition of a nation are, first, that there is such a unity of blood, of interest, and of feeling, in its component parts, that they fly together by a force of attraction that is practically irresistible, — they must live a common life; and, secondly, that there is such an identity in their situation, in relation to other communities, and consequently in the estimation in which they are held and in the dangers which threaten them, that they cannot live asunder. Both of these points concurred in the system founded by the Constitution of 1787. Our fathers must, as they expressed it, “join or die;" that is, they were impelled by every consideration that can draw men together, - the ties of blood, language, religion, common interest, and common glory, — to live together; and it was impossible, on account of inevitable border wars, carried on from ambition or revenge, and from the greed of foreign nations, that they should live apart.

46. There remains still another source of evidence bearing on the question of our nationality, namely, judicial decisions and the opinions of statesmen and publicists subsequent to the formation of the existing Constitution. From the multitude of authorities of the kind referred to, I shall select but a few, and those mainly of an early date, bearing, some on the question of our nationality and some directly on the question of the locus of the powers of sovereignty in the United States.

In 1793, during Washington's administration, the question arose in the Supreme Court of the United States, directly and unequivocally, where rests the sovereignty in the United States ? Does it reside in the States or in the government of the United States, or, finally, is it lodged in the people of the United States ?

The question arose thus: In the case of Chisholm, executor, a citizen of South Carolina, v. The State of Georgia, a motion was made by the Attorney-General, of counsel for the plaintiff in that court, requiring the State of Georgia to cause an appearance to be entered therein, in her behalf, on or before a day named, or, in default thereof, that judgment go agaińst the State by default. The State refused to appear formally, but counsel represented her informally, and protested against the jurisdiction of the court to require the State to appear before it, on the ground, with others, that she was a sovereign State, and so, not suable by a citizen of another State in the courts of the Union, or elsewhere, except in her own courts, without her own consent. The nearly unanimous decision of the five judges then composing the court was against the State of Georgia on all the points raised. I shall cite mainly from the opinion delivered by Mr. Justice Wilson, one of the profoundest constitutional judges that ever graced the bench in the United States, not inferior, in my judgment, to Chief Justice Marshall himself. Justice Wilson said : “ This is a case of uncommon magnitude. One of the parties to it is a state, certainly respectable, claiming to be sovereign. The question to be determined is, whether this State, so respectable, and whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States. This question, important in itself, will depend on others more important still; and may, perhaps, be ultimately resolved into one no less radical than this: "Do the people of the United States form a Nation?'1 After a luminous exposition of the various meanings of the term state, he defines sovereignty, and proceeds : “ As a citizen, I know the government of that State (Georgia) to be republican; and my short definition of such a government is, one constructed on this principle, — that the supreme power resides in the body of the people. As a judge of this court, I know, and can decide upon the knowledge, that the citizens of Georgia, when they acted upon the large scale of the Union, as a part of the people of the United States,' did not surrender the supreme or sovereign power to that State; but, as to the purposes of the Union, retained it to themselves. As to the purposes of the Union, therefore, Georgia is not a sovereign Stale.2 In another part of the same opinion, the learned judge makes the following important observation : “ To the Constitution of the United States the terin sovereign is totally unknown. There is but one place where it could have been used with propriety. But, even in that place, it would not, perhaps, have comported with the delicacy of those who ordained and established that Constitution. They might have announced themselves “SOVEREIGN” people of the United States. But,

1 Chisholm, Ex'r, v. State of Georgia, 2 Dall. 453. 2 Id. 457.

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