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that the term " Federal" en- the enlargement of the Federal
tirely changed its meaning after powers. Thus Hamilton was
the Constitution had left the no Federalist in 1787) when the
Convention. Up to that time it opinions in the text were ex-
had described a Federal, as dis- pressed ; but he was a Federalist
tinguished from a National sys- in 1788, and wrote a large num-
tern of Government, such as that ber of the celebrated essays
established by the Articles of published under that name. —
Confederation. But» when the Vide Hist, of the Constitution,
constitution was before the Oubtis ii., 497*



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56 Hamilton's views.

order to avoid the evils incident to that form,
the Government of the American Union must
be a National representative system. But no
such system can be successful in the actual
situation of this country, unless it is endowed
with all the principles and means of influence
and power which are the proper supports of
Government.

" It musU therefore^ he made completely
sovereign^ and State power^ as a separate
legislative authority^ must be annihilated ;
otherwise the States will be not only able,
but will be constantly tempted, to exert thdr
own authority against the authority of the
nation." And, speaking in the New York
ratifying convention, he said, " We contend
that the radical vice in the old Confederation
is, that the laws of the Union apply to States in
their corporate capacity. Has not every man
who has been in our Legislature experienced
the truth of this position ? It is inseparable
from the disposition of bodies, who have a
constitutional power of resistance to examine
the merits of a law.*

' Eloquence of United States, i. 24.



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A PERMANENT UNION. 57

We have thus proved, we trust, by tbe
history of former colonial unions, and by the
recorded opinions of some of tbe most influ-
ential fathers or framers of the Constitution,
that it was intended to establish an indisso-
luble union of the States, and the complete
unity, within prescribed limits, of the National
Government ; and that these were the great
ends to which all other objects were pro-
nounced by the Constitutional Convention
of inferior magnitude. What, then, says the
Constitution itself ?



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58



IV.

THE CONSTITUTIOK— ITS FOUNDATIOK.

We propose now to examine the Constitu-
tion of the United States, with special refer-
ence to the question discussed in the sixth
chapter of Mr. Spence's work — "Is secession
a constitutional right?*' availing ourselves of
such external evidence as may be found in
the writings or speeches of its framers.

This remarkable document is of no great
length. It is not written in technical phrase,
but in the language of ordinary life. It con-
sists of seven articles, and is subdivided into
sections and clauses. These relate to the
Legislature, the Executive, the Judicial powers,
the rights of citizenship, the admission of new
States ; the amendment of the Constitution, its
binding force, its ratification, and a supplement
of amendments afterwards adopted. We shall
examine such parts as come within the scope
of our present inquiry.

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SOURCE OF AUTHORITY. 59

The preamble states : — " We, the People of
the United States, 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 to ourselves and our pos-
terity, do ordain and establish this Constitution
for the United States of America."

In this preamble we have, first, the authority
on which the Constitution is founded — " We,
the People." Second, the objects for which it
is ordained and established. These are to form
a more perfect Union, establish justice, insure
domestic tranquillity, &c. Third, the subject
of it — the United States of America.

The authority, we observe, is the People of
the United States ; not those of the separate
States ; still less the States themselves in their
corporate capacity, as they were united under
the Confederation. The Constitution was
proposed by a convention recommended by
Congress, the delegates of which were com-
missioned by the State legislatures. It was
ratified by conventions of the people within
each State. It is therefore a Constitution



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60 *'WE, THE PEOPLE."

proposed by the individual States, but receiving
its sanction and validity from the whole people.
Mr. Spence has endeavoured to fritter away
the meaning of this phrase, " We, the People,"
by some very strange arguments, a few of
which we must notice.

" It has also been endeavoured," he says, " to
impart a peculiar force to this epithet by the
deduction that it proved the popular action,
and so gave the sanction of its being a direct
manifestation of the people's will. The defect
of this argument is, that of being directly
opposed to historical record. It is the fact,
that after the Constitution was framed by
delegates of the States, approved by the Con-
gress appointed by the States, and referred to
the legislatures of the States, it was finally
ratified by a convention called in each State
for the purpose." ^

The words " referred to the legislatures of the
States" do not, as we have just shown, give the
exact truth. The Convention and the Congress
had alike declared that the Constitution should
go direct to the people; and if Mr. Spence

* The American Union, 224.

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"we, the people." 61

means to say that it rested in any way with the
State legislatures to determine whether it might
or might not be so submitted, we reply it is he
who is " opposed to historical record/' ^

He objects to the mode in which the people
ratified the Constitution, viz., by conventions
of representatives.

He says, "the decision, whether to ratify
or not, was left absolutely to these conventions :
they acted independently on their own judg-
ment. Their decision, therefore, was an act
of the people, simply as a vote of the House of
Commons may be called an act of the people,
and in no other sense," ^ Certainly ! We ask
no other admission. How the sovereign power
chooses to act does not impugn the act itself.
The people, politically speaking, means simply

1 "Whereas the Convention tion and letter aocompaoying the
asaembled in Philadelphia pur- the same^ be transmitted to- the
suant to the resolution of Con- several legislatures, mi order to
gress, 21st Feb., 1787, did, on the be submitted to a convention of
17th September in the same delegates, chosen in each State
year, report to the United States by the people thereof, in con-
in Congress assembled a contti- formity to the resolves of the
ttUion for the people of the United Convention made and provided
States f whereupon Congress * * in that case.* " — Proceedings in
did resolve unanimously, 'That Congress, 13th Sept. 1788.
the said report, with the resolu- Hickbt's " Constitution," 190.
> The American Union, 224.



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62 OBJECTIONS OF PATRICK HENRY.

its organized portion. No legislature can ever
obtain the assent of all the people. Discon-
tented minorities there must always be ; and
were the objection good, no civil government
whatever could be said to have been founded
on the consent of the governed.

It is, however, more important to notice Mr.
Spence's next objection, since he commits, as
we will show, a flagrant error in respect
to the intention of the framers of the Consti-
tution.

Speaking of Madison, he says, "It so happens
that we have on record his interpretation of
this very phrase. In the ratifjing convention
of the State of Virginia, Patrick Henry objected
strongly to the words " We, the People,'* on the
ground that the very construction might be
given to them which is attempted at the
present day. But Madison at once showed
such construction to be erroneous. He replied
in these words, ' The parties to it were to be
the people, but not the people as composing
one great society, but the people as composing
thirteen sovereignties.' Not contented with
giving the true meaning of the phrase, he

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REPLY OF MADISON. 63

adduced an argument to prove it, by adding,
*If it were a purely consolidated Government,
the assent of a majority of the people would be
sufficient to establish it. But it was to be
binding on the people of a State only by their
own separate consent. This argument seems to
be conclusive, and as an interpreter of the
meaning of the terms, none will attempt to
compare the authority of Mr. Motley, or of
Webster, with that of Madison." ^

But what if Madison, Motley, and Webster
be, after all, agreed ? Let us see how stand
the facts. In the first place, Mr. Henry
worded his objection in reference to the final
result of ratification, and not to the act itself;
Madison's reply refers to both, and, when given
in fully sliows Mr. Henry's idea to be per-
fectly correct.

Mr. Henry thus put it, "My political
curiosity * * * leads me to ask who
authorized them to speak the language of

♦ We, the People,' instead of * We, the States '

* ^ * If the States be not the agents of this
compact^ it mtist be one great consolidated

^ The American Union, 225. Oar Italics.



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64



OBJECTIONS OF PATRICK HENRY.



National Government of the people of all the
Statesr ^

On another occasion he exclaimed, " The
fate of America may depend on this question,
have they said ' We, the States ? ' Have they
made a proposal of compact between States ?
If they had, this would be a Confederation ;
it is, otherwise, most clearly a consolidated
Government. The whole question turns, sir,
on that poor little thing the expression, JFV,
the People^ instead of the States of America." *

It was upon the first of these occasions that



Wiet's Life of Pat. Henry, 284. Italics sic.



^ Idem, 286. Italics sic.

** It is also historically known
that one of the objections taken
by the opponents of the Con-
stitution was ' that it is not a
Confederation of the States, but
a Government of individuals. It
was, nevertheless, in the solemn
instruments of ratification by
the people of the several
States assented to as a Con-
stitution ; and although many
declarations of rights, many
propositions of amendments,
and many protestations of re-
served powers, are to be found
accompanying the ratification of



the various conventions, suffici-
ently evincive of the extreme
caution and jealousy of those
bodies and of the people at large,
it is remarkable that there is no-
where to be found the slightest
allusion to the instrument as a
Confederation or compact of
States in their sovereign capa-
city, and no reservation of any
right on the part of any State to
dissolve its connection or to ab-
rogate its assent, or to suspend
the operations of the Constitu-
tion as to itself." — Stoby's
5, 120.



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EEPLY OF MADISON. 65

Madison replied in the words quoted by Mr.
Spence. But this gentleman does not com-
mence his quotation soon enough, and ends
it too soon. We will give it nearly in full.
" Even if we attend to the manner in which
the Constitution is investigated, ratified, and
made the act of the people of America, I can
say, notwithstanding what the honourable
gentleman has alleged, that this Government
is not completely consolidated, nor is it
entirely federal. Who are the parties to it ?
The people ; not the people as composing
one great body, but the people as composing
thirteen sovereignties. Were it, as the gen-
tleman asserts, a consolidated Government, the
assent of a majority of the people would be
sufficient for its establishment, * ♦ * 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 ''^ These last words form a most

> Eloquence of Uoited States : Madison in the Virginian Conren-
tion, i. 137.

F



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66 WHO ARE THE "PEOPLE?"

important modification of those only quoted
by Mr. Spence. It is his failure to distin-
guish between the mode of ratification and
its results that has blinded Mr. Spence to the
fact that, by the Constitution, all sections
of the Union are united as one People. And
hence he has been led into a justification of
the present rebellion, by appealing to the
Declaration of Independence, which declares,
that governments derive their just powers
from the consent of the governed, and to the
constitutions of the several States, all of
which embody the same declaration. But
this is a principle which requires the very
strictest interpretation, or it may be made the
apology for anarchy. Who are the governed
under the Constitution of the United States ?
The people at large. Whenever they desire
to alter that Constitution, it provides for their
doing so; and, those means failing, and a
decided majority still withholding their "con-
sent,'' the recognized revolutionary right of
overturning the entire structure remains.^

1 The question has often been ratification marks in any way
cliscussed, whether this mode of the character of the Government

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WHO ARE "THE PEOPLE?'



67



Two writers in the Edinburgh Review,
October, 1861, and in the Quarterly Review^
January, 1862, have both fallen into Mr.
Spenee's error. The former — in order to
prove his position that the Union has never
had the power of a National Government
supreme over the People, and after denying
that its Constitution was ordained and esta-
blished by a power superior to the States
in their corporate capacity — quotes some
words of Madison from the 39th number



established by the coostitution.
At present it is only Decessary
to observe, that the design of
the committee was to sabstitnte
the authority of the people of
the States in the place of that of
the State Legislatures, for a
threefold purpose. First, it was
deemed desirable to resort to the
supreme authority of the people,
in order to give the new system
a higher sanction than could be
given to it by the State Govern-
ments. Secondly, it was thought
expedient to get rid of the doc-
trine often asserted under the
Confederation, that the Union
was a. mere compact or treaty
between independent States, and
that therefore a breach of its



articles by any one State ab-
solved the rest from its obliga-
tions. In the third place, it
was intended by this mode of
ratification to enable the people
of a less number of States than
the whole' to form a new union,
if all should not be willing to
adopt the new system. The
yotes of the States in committee,
upon this new mode of ratifica-
tion, show that on one side were
ranged the States that were
aiming to change the principle
of the Goyernment, and on the
other the States that sought to
preserve the principle of the
Confederation.'' — History of the
Constitution, Curtis, ii., 85.



F 2



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68 CONSOLIDATION OF THE UNION.

of the Federalist explaining the mode of
ratification, and supposes they applied to the
final result. The ratification was undoubtedly
Federal; the combined result was National.
But, in the former, the appeal was not made
to the legislatures of the States, but to the
people in the States, who were sovereign alike
over their separate constitutions, and over that
one which, when ratified by all, would be
supreme over all within its prescribed limits.
This explanation should never be lost
sight of in our study of the American Con-
stitution.

Our author has, indeed, committed several
errors in this part of his inquiry. His great
difficulty seems to be how a consolidated State
can be a Union. " Union without plurality is
a contradiction of ideas." But are we not our-
selves citizens of a Union, — ^a union of States
once sovereign and independent, still governed
by their own laws, but which now form a
united kingdom and a consolidated State?
The phrase we are now discussing can have no
bearing, he thinks, on the question, unless it
indicate a single community, — a " consolidated

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CONSOLIDATION OF THE UNION. 69

State." ^ But no one has ever contended that
the Federal Republic is a '* consolidated
State," but only a consolidated Union; and
this designation was given to it by the General
Convention itself,^ and repeated by all the
framers of the Constitution,

Again, Mr. Spence supposes that the
inequality of the suffrage existing in the
several States is one of the proofs that the
Republic is not a single People or State.
V Were it founded in fact,'' says he, " the
first result, under a republican form of
government, would be uniformity of suf-
frage. The Constitution leaves it to each
State to ordain what suffrage it may please.
One State may have the most aristocratic,
and another the most democratic, of electoral
constituencies, without the slightest power in
the Federal Government to interfere with
either."^

We have already said no one has ever
Bpoken of the Republic as a single State.

> The American TTnioD, 223.

' Vide Letter of Federal Convention to Congress, ante, 54.

< The American Union, 224.



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70 CONSOLIDATION OF THE UNION.

But will Mr. Spence say that the inequality
of suffrage in our own country — much greater
before the Reform Bill than now — is destruc-
tive of our political unity? And why must
a Federal Union, with a republican form of
government, necessarily have a uniformity of
suffrage any more than a motiarchy ? Surely,
a Constitution formed by the people can pre-
scribe its own terms. Besides, it is not true
that '* the Constitution leaves it to each State
to ordain what suffrage it may please." The
words are, "The House of Representatives
shall be composed of members chosen every
second year by the people of the several
States; and the electors in each State shall
have the qualifications requisite for electors
of the most numerous branch of the State
Legislature.^' ^

The American Republic is not a simple
Republic : it is a Repubh'c of United States.
The people of each State are (within the
limits of a republican form of government)
sovereign, as regards their own constitution;
and whatever suffrage they consider most

1 CoustitutioD; Art. i. 8ec. ii« 1. Appen^x.

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CONSOLIDATION pF THE UNION. 71

desirable for their own most numerous branch
of legislature, that, the Constitution ordains
for the corresponding branch of the National
Legislature ; while the Senate — also an elec-
tive body — ^must be chosen by the Senate and
representatives of the State combined. How
these arrangements prevent the inhabitants of
all the States forming, for special purposes, and
in all their relations to foreign Powers, one
single People, we are at a loss to conceive.



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72



V.

THE CONSTITUTION, LEGISLATIVE AND
EXECUTIVE.

ARTICLE I.

Section I. All Legislative powers herein granted shall be vested
in a Congress of the United States, which shall consist of a
Senate and House of Bepresentatives.

Section II. —1. The House of Representatives shall be composed of
members chosen every second year by the people of the several
States ; and the electors in each State shall have the qualifica-
tions requisite for electors of the most numerous branch of the
State Legislature.

Section III. — 1. The Senate of the United^States shall be composed
of two Senators from each State, chosen by the Legislature
thereof, for six years ; and each Senator shall have one vote.

4. The Vice-President of the United States shall be Pre-
sident of the Senate, but shall have no vote unless they be
equally divided.

These clauses of the Constitution strongly
indicate its real character.

When, in the Virginian Convention, Patrick
Henry laboured to show that the proposed
Constitution implied a consolidated Govern-
ment, Madison thus replied : " I myself con-
ceive, that it is of a mixed nature ; it is, in a



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CHARACTER OP THE CONSTITUTION. 73

manner, unprecedented. We cannot find one
express prototype in the experience of the
world : it stands by itself. In some respects
it is a Government of a Federal nature; in
others it is of a consolidated nature." ^ And
De Tocqueville thus describes it : " In this
case the central Power acts directly upon those
whom it governs, whom it rules, and whom it
judges, in the same manner as, but in a more
limited circle than, a National Government.
Here the term Federal Government is clearly
no longer applicable to a. state of things which
must be styled an incomplete National Govern-
ment ; a form of government has been found
out which is neither exactly National nor
Federal ; but no further progress has been
made, and the new word which will one day
designate this novel invention does not yet
exist."^

Both these descriptions are perfectly accu-
rate. In the Senate, the Constitution is Fede-
ral ; for the representation is by States, and
directly springs from the State Legislatures —

> Eloquence of United States, i. 137.

^ Democracy in America, i. 138. American edition, 1838.



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74 CHARACTER OF THE CONSTITUTION.

each State sending two senators, irrespective of
its size or population. And yet in action it is
not wholly Federal ; for, every senator having
one vote, one may be absent upon a division,
and the two are frequently found recording
their votes on opposite sides of the same ques-
tion. In the House of Representatives it is
completely National, for there the power is
derived directly from the People, and the
members count in proportion to population.
In the Executive department, it is chiefly
National, but in some degree Federal : the
latter, because to the Legislature of each State
is left the " manner " of appointing the electors,
with the proviso, however, that they shall equal
in number its senators and representatives to-
gether in Congress. Now, as these representa-
tives are in proportion to population, the choice
of the Executive becomes mainly National,
because it is decided by a majority of the
electors so appointed. It may, however, be in
a further degree Federal, under a contingency
which we shall hereafter have occasion to
explain.

The appointment of Vice-President lies also

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POWERS OF CONGRESS. 75

with the People, and, in case of need, follows
a similar course ; with this exception, tiiat the
ultimate choice is with the Senate, who vote
by senators and not by States. The Vice-Presi-
dent is, ex-officio^ President of the Senate, and
in case of equal division, has a casting vote.
Thus a man who is the choice of the People
at large presides over the House, which is
elected by the States in their corporate
capacity.

ARTICLE I.

Section Y.— 1. Each House shall be the judge of the elections,
returns, and qualifications of its own members ; and a majority
of each shall constitute a quorum to do business ; but a smaller
number may adjourn from day to day, and may be authorized
to compel the attendance of absent members, in such manner,
and under such penalties, as each House may provide.

2. Each House may determine the rules of its proceedings *
punish its members for disorderly behaviour ; and, with the
concurrence of two-thirds, expel a member.

These clauses are entirely National in their
character, and are in accordance with the prac-
tice of our own House of Commons. They
both form a negative on State sovereignty.
The first is, of course, in constant operation.
The second can point to a precedent so early



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76 COMPENSATION TO CONGRESS.

as 1797, when the Senator from Tennessee was
expelled for " a high misdemeanour entirely
inconsistent with his public trust and duty as a
Senator;^' his offence being an attempt to
seduce an Indian agent from his duty, and to
alienate the affections of the Indians from the
authorities of the United States. He was after-
wards impeached.^

ARTICLE I.

Sbotion VI. — 1. The Senators and Representatives shall reoeive a
compensation for their services, to be ascertained by law, and
paid out of the Treasury of the United States.

Compensation to members of Congress for
their services is here provided for. It is " ascer-
tained by law." They are not paid by the


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