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.' 3 In Hamilton's plan, which he furnished to Madison at about the close of the Federal Convention, the preamble reads 66 The people of the United States of America, do ordain and establish this Constitution for the government of themselves and their posterity."4 The form was manifestly adopted for the purpose of reaffirming the statement that the Constitution was a law rather than a treaty. It was suggested by the form used in previous State Constitutions, and shows an intention to place the Federal Constitution upon the same footing. § 27. Significance of the Word "Constitution." 1 But above all the preamble concludes with the words, "this Constitution of the United States of America." In the Articles of Confederation, that instrument was styled "a firm league of friendship." If no change had been designed, the word "league would have been repeated. The word Constitution had a wellknown meaning at the time, having been used in the Constitutions of the different States which were not still governed under their colonial charters. It signified a fundamental law,2 unchangeable and indissoluble except in the manner therein indicated, or by a revolution. This fact, coupled with the subsequent declaration that the Constitution of the United States was the supreme law of the land,3 establish that construction which has been settled by the logic of subsequent events. Attempts have been made to weaken the force of the use of sat from July 10th, 1776, to April 20th, 1777, recites in nearly every resolution: "This convention, therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that." Poore's Charters and Constitutions, Part II, p. 1332. 3 Madison Papers, Elliot's Debates, 2d ed., vol. v, p. 584. 4 Madison Papers, Elliot's Debates, 2d. ed., vol. v, p. 584. § 27. 1 Articles of Confederation, III. 2 Webster, § 16, note 14, supra. this term by reference to the language of statesmen and public documents which speak of the Articles of Confederation as a constitution, especially the resolutions of Congress recommending the Federal Convention, in order to "render the Federal Constitution adequate to the exigencies of government and the preservation of the Union."5 But the language there used was colloquial rather than technical, and in the same sense that Blackstone and others employ when describing the statutes and common law of Great Britain in relation to the powers and composition of the Crown and Parliament as the British Constitution. The term is not used in the Articles of Confederation themselves: and, moreover, many claimed that they could not be legally dissolved.6 § 28. Testimony of Contemporary Statesmen on the Nature of the Constitution. When we examine the views of contemporary statesmen, the same conclusion is strengthened. Nowhere in the debates in the Federal or State Conventions, nor in the pamphlets on either side of the question of ratification, do we find a hint of the right of secession. Its opponents attacked the Constitution as a destruction of the States and the creation of a consolidated nation. The 4 See the commissions of the delegates to the Federal Convention, Elliot's Debates, 2d ed., vol. i, pp. 126-139; Republic of Republics, by Bernard J. Sage, 4th ed., p. 198. 5 Quoted supra, § 5. See the language of Patterson, quoted supra, § 20. $28. 1 See especially the arguments of Patrick Henry, George Mason, and others, in the Virginia Convention. George Mason prophesied with wonderful prescience the grievances which subsequently arose. He foretold the Sedition Law: 66 Now, suppose oppressions should arise under this government, and any writer should dare to stand forth and expose to the community at large the abuses of those powers; could not Congress, under the idea of providing for the general welfare, and under their own construction, say that this was destroying the general peace, encouraging sedition, and poisoning the minds of the people? And could they not, in order to provide against this, lay a dangerous restriction on the press?" Elliot's Debates, 2d ed., vol. iii, p. 442. He warned the South that slavery would be endangered :— "There is a clause to prohibit the importation of slaves after twenty years, but there is no provision for securing to the Southern States those they now possess. It is far from being a desirable property; but it will involve us in great difficulties and infelicity to be ever deprived of them. There ought to be a clause in the Federalists admitted that the new government was partly national, but claimed that the composition of the Senate and the election of the President made it also partly Federal. "On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, the authority of the people. themselves. The act, therefore, establishing the Constitution, will not be a national, but a federal act.” 2 "The next relation is to the sources from which the ordinary powers of government are to be derived. The House of Representatives will derive its powers from the people of America; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular State. So far the government is national, not federal. The Senate, on the other hand, will derive its powers from the States, as political and coequal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is federal, not national. The executive power will be derived from a very compound source. The immediate election of the President is to be made by the States in their political characters. The votes allotted to them are in a compound ratio, which considers them partly as distinct and coequal societies, partly as unequal members of the same society. The eventual election, again, is to be made by that branch of the legislature which consists of the national representatives; but in this particular act they are to be thrown into the form of individual delegations, from so many distinct and coequal bodies politic. From this aspect of the Constitution to secure us that property, which we have acquired under our former laws, and the loss of which would bring ruin on a great many people." Ibid., p. 270. See also Mason's remarks to the same effect, ibid., pp. 453, 458. Madison argued that there was adequate protection by the provision for the return of fugitive slaves and the grant of no power to abolish slavery. Ibid., p. 453. Patrick Henry replied, ibid., pp. 455, 456. The address of the minority of the Pennsylvania Convention included among the objections enumerated that there is "no declaration that the States reserve their sovereignty, freedom and independence." American Museum, November, 1787. 2 Madison in The Federalist, No. xxxix, Lodge's ed., p. 236. government, it appears to be of a mixed character, presenting at least as many federal as national features. "The difference between a federal and national government, as it relates to the operation of the government, is supposed to consist in this, that in the former the powers operate on the political bodies composing the confederacy, in their political capacities; in the latter, on the individual citizens composing the nation, in their individual capacities. trying the Constitution by this criterion, it falls under the national, not the federal character; though perhaps not so completely as has been understood. In several cases, and particularly in the trial of controversies to which States may be parties, they must be viewed and proceeded against in their collective and political capacities only. So far the national countenance of the government on this side seems to be disfigured by a few federal features. But this blemish is perhaps unavoidable in any plan; and the operation of the government on the people, in their individual capacities, in its ordinary and most essential proceedings, may, on the whole, designate it, in this relation, a national government.' "If we try the Constitution by its last relation to the authority by which amendments are to be made, we find it neither wholly national nor wholly federal. Were it wholly national, the supreme and ultimate authority would reside in the majority of the people of the Union; and this authority would be competent at all times, like that of a majority of every national society, to alter or abolish its established government. Were it wholly federal, on the other hand, the concurrence of each State in the Union would be essential to every alteration that would be binding on all. The mode provided by the plan of the convention is not founded on either of these principles. In requiring more than a majority, and particularly in computing the proportion by States, not by citizens, it departs from the national and advances towards the federal character; in rendering the concurrence of less than the whole number of States sufficient, it loses again the federal and partakes of the national character. The proposed Constitution, therefore, is, in strictness, neither a national nor a federal Constitution, but a composition of both. In its foundation it is federal, not national; in the sources from which the ordinary powers of the government are drawn, it is partly federal and partly national; in the operation of these powers, it is national, not federal; in the extent of them, again, it is federal, not national; and, 3 Madison in The Federalist, No. xxxix, pp. 237, 238. finally, in the authoritative mode of introducing amendments, it is neither wholly federal nor wholly national."4 Wilson said in the Pennsylvania Convention: a "We now see the great end which they proposed to accomplish. It was to frame for the consideration of their constituents one Federal and National Constitution a constitution that would procure the advantages of good, and prevent the inconveniences of bad government constitution whose beneficence and energy would pervade the whole Union and bind and embrace the interests of every part - a constitution that would insure peace, freedom, and happiness to the States and people of America. ” 5 "If when he says it is a consolidation, he means so far as relates to the general objects of the Union, — so far it was intended to be a consolidation, and on such a consolidation perhaps our very existence as a nation depends.' "The very manner of introducing this Constitution, by the recognition of the authority of the people, is said to change the principle of the present Confederation, and to introduce a consolidating and absorbing government. "In this confederated republic, the sovereignty of the states, it is said, is not preserved. We are told that there cannot be two sovereign powers, and that a subordinate sovereignty is no sovereignty. "It will be worth while, Mr. President, to consider this objection at large. When I had the honor of speaking formerly on this subject, I stated, in as concise a manner as possible, the leading ideas that occurred to me, to ascertain whether the supreme and sovereign power resides. It has not been, nor, I presume, will it be denied, that somewhere there is, and of necessity must be, a supreme, absolute, and uncontrollable authority. This, I believe, may justly be termed the sovereign power; for, from that gentleman's (Mr. Findley) account of the matter, it cannot be sovereign unless it is supreme; for, says he, a subordinate sovereignty is no sovereignty at all. I had the honor of observing, that, if the question was asked, where the supreme power resided, different answers would be given by different writers. I mentioned that Blackstone would tell you that, in Britain, it is lodged in the British Parliament; and I believe there is no writer on this subject, on the other side of the Atlantic, but supposed it to be vested in that 4 Madison in The Federalist, No. xxxix, Lodge's ed., p. 239. 5 Elliot's Debates, 2d ed., vol. ii, p. 431. 6 Ibid., p. 461. |