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one feature was to negative all laws passed by the several States "contravening in the opinion of the national legislature the articles of the Union." Hamilton, the extreme unionist, would probably have gone much farther than this, even to the point of taking away from the States all legislative power. A middle course prevailed, that of establishing a national government, as it is repeatedly called in the report, and of continuing the States in the possession of certain powers not taken from them by the general constitution.
This Constitution begins with the words, "We, the people of the United States, in order to form a more perfect union, etc., do ordain and establish this Constitution for the United States of America." What is meant by "we, the people of the United States," which was substituted for "we, the people of New Hampshire, Massachusetts," etc., as the first draft of the Constitution had phrased it? Dr. Palmer has an explanation which amounts to this: that "we, the people," being declared to be the people of the United States, this title "embodies the history of the formation of the Union, as a Congressus of States, which, by aggregation, make one people. In proof of this, it is a title simply transferred from the old confederation, when no one denies that the States were separate and independent." In other words, if the instrument had begun with "we, the people," only, or if some national term had been added, as America or Liberia, there might have been some show of "consolidation" in the words, but "the United States" knock consolidation in the head and justify secession. Here is logic and statesmanship for you. A league of States can never become one State because they are called United States at the time of making the league, and it is convenient to retain the old name by which they had been known before. Does not Dr. Palmer know that the "people of the United States" means the people inhabiting the country so called? Is he not perfectly aware that there is a marked and intended
* He does not mean the title of people of the United States, but that of United States. The people are not spoken of as having any share in forming the confederation.
departure in the present Constitution from the terms of the old confederation, which styles itself a confederation between certain specified States, forming a firm league of friendship with each other, while the people of the United States are in no sense direct parties to the contract? Is he not aware that this was so understood by the enemies as well as by the friends of the new Constitution, when the great question of its adoption was before the country? What said Patrick Henry, then averse to the proposed framework of government in the Virginia Convention? "I have the highest veneration for those gentlemen, [the framers of the Constitution]; but, Sir, give me leave to demand what right had they to say we, the People?-Who authorized them to speak the language, 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 the States." And what said Edmund Randolph in reply? "The gentleman inquires why we assumed the language of we, the people? I ask, why not? The government is for the people; and the misfortune was that the people had no agency in the government before." And in a debate on the next day, Henry returned to the same strain of argument. "Have they said we, the States? Have they made a proposal of a compact between the 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."*
We may add, that when the question arose who should ratify the Constitution, the legislatures or the people, it was felt and distinctly expressed, as by Mr. Madison, cited by Mr. Curtis, (II, 184), that a system founded on the consent of the legislatures would be a treaty, while one sanctioned by the people would be a constitution.
Dr. Palmer confesses his inability to understand the doctrine of a double sovereignty; a sovereignty, as he forcibly puts it,
* Elliott's Debates, II, 47, 51, 61. First Edition.
"which, while it is delegated to the general government is nevertheless supreme; and a sovereignty, which, while it is retained by the States as a part of their original inheritance, is, nevertheless, subordinate." There seems to be a great deal of haze created in some minds by this word sovereignty, whose vagueness and variety of meaning Dr. Lieber well sets forth in his first lecture. Two coördinate and equal sovereignties certainly cannot exist, but no reason can be assigned why a particular State may not be sovereign in certain relations, and the general republic called the United States in another. Sovereignty, in the international sense, that is, the power of entering into political relations with foreign states, never pertained to any one of the colonies or to any one of the States. It was the independence of all the States together which England acknowledged in 1783, and if any State should make a treaty with an external power at present, such an act would not only violate the Constitution, but be ground of complaint or even of war on the part of the Union. States, on compulsion or without it, may surrender a part of their sovereignty; this is the case with Belgium and Switzerland, in consequence of the arrangements by which, for the peace of Europe, they have been put into the category of perpetual neutrals; or, in other words, by which their power of making war,-one of the highest attributes of sovereignty, has been abandoned forever, and yet, for all other purposes, they are sovereign States. In the same way the individual States of this Union are sovereign only in a qualified sense, within a certain territory; and, indeed, the United States are a sovereign State only in a qualified, although a higher sense.* Neither can do everything which pertains to a supreme power. Will it be said that the sovereignty of the United States is delegated? If in this word is implied a reserved power of withdrawing that portion of sovereignty which pertains to the United States, this is a mere begging of the question. We say this sovereignty came just as much from
Dr. Lieber remarks that the Swiss publicists speak of the sovereignty of Switzerland, and of the cantonal sovereignty of each canton, although he thinks that the idea of cantonal allegiance is unknown to them. Since 1848, the Swiss government is like that of the United States; before, it was a simple confederacy.
the people as that of the States came from them. No new consideration then is advanced here; we only run back to the inquiry, who were the parties to the Constitution? If Dr. Palmer and other secessionists are unable to understand the doctrine of a double sovereignty, it is because they affix a sense to the word which suits their purposes. But political science and constitutional history will not be put into the straitjacket of rigid abstract definitions.
Much the same remarks are to be made on the assertion that allegiance is only due to the state government, so that in seceding there is no allegiance to the thrown off. Allegiance denotes the fact of being bound to another, or more specifically the fealty or obedience due by the liege-man (homo ligatus) to his liege-lord. In the feudal age a vassal might owe qualified allegiance to two suzerains for lands held under both, and so now the citizen may be bound to obey the State so far as its attributes are expressed in constitutional law, and the United States, so far as the Constitution of the Union requires. Why is it that that Constitution, and the Constitutions of nearly all the States, require every officer of the state gov ernments to be bound by oath or affirmation to support it, if no obligation to obedience and therefore to allegiance goes with this oath? When it is said that the judges in every State are "bound thereby; anything in the constitution or laws of any State to the contrary notwithstanding," is there nothing here like allegiance to the United States,-nay, is not an allegiance contemplated which in cases of collision renders it wrong for the state officers to obey state law? When such a crime as treason is named and defined by the Constitution of the United States, is there not an absurdity in denying that allegiance is due towards the party against whom the treason can be committed? I can be an enemy to a government, if I help its enemies in war, but not a traitor unless it is my sovereign, and I owe it fealty or allegiance. Will it be said that the people are not bound by this oath, but only the officers and magistrates? But the oath is added to give greater solemnity to obligations which existed before. The private citizen is bound to obey state law, whether he has taken the oath to do so or
not, and so his obligations to the United States are to be deduced from his being a citizen of the United States. Or will it be said that allegiance is due to the United States only because, and while the true sovereign, the State, permits it? Here, again, we come back to the old ground that the Constitution is a league, and the argument has no independent validity.
The state rights theory breaks down when we look at the condition of the new States which have grown up on the territory acquired by purchase, as from France or the Indians. Here are individuals who have been subjected to the law of the United States alone, who are under its exclusive sovereignty, and are permitted by its authority to form a platform of government on the approbation, perhaps the conditional approbation, of which, they first become a body politic. They cannot resume sovereignty, if they break away from the union, for they never had it until it was granted to them by the United States. They are the creation of law under the Constitution. They made no stipulation on their entrance that they should be allowed in certain contingencies to retire from the partnership. The United States, it is certain, would never at any time since the government was founded have consented to such a conditional accession. The only alternatives then are, return to the territorial character, or independence and separation, won by revolution.
And it is equally fatal to this theory that the United States, by the Constitution, guarantee to every State in this Union a republican form of government. If, for instance, South Carolina should want an English prince for its king, or Louisiana some Bourbon or Napoleonid, it would be the obligation of the general government to crush the young monarchy at once, whether the people for the time wanted institutions other than republican or not. But by the doctrine of secession the State has only to retire and then set up a king, or if it will, set up a king and then retire, and nobody has a right to touch it. The guarantee then is perfectly unmeaning, unless it shall insist on remaining in the Union and being the victim of the guarantee. We claim to prohibit other nations from extending their institu