modated in their interests or opinions of interest. We are now in possession of the theory held by the framers of the federal constitution; and by the authors of The Federalist, that is to say, by Madison and Hamilton; for but a very few numbers of that luminous work were written by Jay, and to the theory held by him, those numbers afford no definite clue. It seemed to be of great importance that those original expounders of the constitution should be permitted to speak for themselves; for, not only is their authority unquestioned, but great injusticehas been done to their names by writers who have claimed them in support of the imperial school. Let us place beside their views, expressed in their own language, the following singular array of strange propositions, in support. of which, not a single reference to any authority is made by their author. 'The collective People of the United States AS A POLITICAL UNIT, existed prior to the adoption of the Constitution, and was not therefore called into being as a consequence of that instrument. The Constitution was not the work of the separate states, regarding those states simply as organized governments, nor of the peoples of those states, regarding those peoples as separate and independent sover 1 This was the language of Hamilton in speaking of amendments to the federal constitution. See The Federalist, No. 85, pp. 402-403. That he regarded the STATES as the PARTIES and only parties to the constitu-tion, is shown by his language previously quoted, at 119 and following. 2 The Federalist is composed of eighty-five numbers; of which, six only were written by Jay; while Madison contributed twenty-nine, and Hamilton, fifty. 8 129. ¿ 130. Jay's view. eign aggregates or communities; but it was the work of the People of the United States as a whole, as a political unit, not voting together, it is true, in the process of adoption, as a consolidated mass of electors, but, for reasons of policy and convenience, acting in their respective commonwealths. As a necessary consequence, the powers held by the general government were not delegated to it by the several states, regarding those states simply as organized governments, nor by the peoples of the several states, regarding those peoples as separate and independent sovereign aggregates or communities; but were delegated to it by the people of the United States as a whole, abstracted from their local relations to the various commonwealths of which they were also members; although, in the very process of delegation, this one people did not vote together as a consolidated mass of electors, but, for certain reasons of policy and convenience, acted in their respective states. The powers not thus granted by the people of the United States to its general government, were not reserved by the several states to themselves; for, as these states as such did not grant any powers, they could not reserve any. But they were reserved by the People of the United States to themselves, or to the several states. Thus the People of the United States, as a naTION, is the ultimate source of all power, both that conferred upon the general government, that conferred upon each state as a separate political society, and that retained by themselves.' "This, in substance,' says Mr. Pomeroy, 'is the view of the Constitution advocated by Hamilton, by Jay, by Marshall, by Story, by Webster, and upheld by the judgments of the Supreme Court during the earliest years, and while it continued under the leadership of its most illustrious head, Chief Justice Marshall." Hamilton maintained that 'THE STATE GOVERNMENTS, BY THEIR ORIGINAL CONSTITUTIONS, ARE INVESTED WITH COM 1 Pomeroy's Constitutional Law, ¿? 28-29. PLETE SOVEREIGNTY." His developed theory we have already given; not in our language, nor on the authority merely of our own assertion, but in his own words. It nowhere differed, essentially, from that of Madison; and not a line from the pen of either, points to the adoption of the constitution by the PEOPLE OF THE UNITED STATES AS ONE. POLITICAL BODY, or as other than THIRTEEN SOVEREIGN STATES. The theory of Jay, as already observed, is not to be learned from The Federalist papers: unless we collect it from his opening, wherein he says 'It is well worthy of consideration, therefore, whether it would conduce more to the interest of the people of America, that they should,. to all general purposes, be one nation, under one federal government, than that they should divide themselves into. separate confederacies, and give to the head of each the same kind of powers which they are advised to place in one national government." He nowhere speaks, in The Federalist, of the adoption of the constitution by the one body politic; of which, indeed, no one of that day had any idea. It was he who, in the character of chief justice of the United States, afterward announced and sanctioned the following position: 'Every State Constitution is a Compact, made by and between the citizens of a State, to govern themselves in a certain manner; and the Constitution of the United States is likewise a Compact, made by the people of the United States, to govern themselves, as. to general objects, in a certain manner." In the case before him, he used the phrase, 'people of the United States," very nearly in accordance with the imperial view above set forth; but it can hardly be supposed, consistently with his known integrity, that he designed to convey the idea. that the people of the whole country, in the capacity of a single political community, had ordained and established the federal constitution. 1 The Federalist, No. 31, p. 138. 2 The Federalist, No. 2, pp. 10-11. Chisholm Ex'r v. Georgia, 2 Dall. Rep. 470-471. See note to 2 110, ante. 1tion. 131. Chief Premising that, by some of our leading statesmen and Justice Mar- jurists, 'the states have been continually confounded with shall's posi- the mere ruling apparatus or governments of these societies;" and that Chief Justice Marshall himself, on many occasions, as the following will show, speaks of 'the States in their sovereign capacities' and the State sovereignties' when only referring to 'the State governments;' the theory of that great and eminent jurist shall now be given at length in his own words, and as expressed by him in his judicial capacity. Delivering the opinion of the Supreme Court of the United States, in McCulloch v. The State of Maryland, he said: The convention which framed the constitution, was, indeed, elected by the legislatures of the several states. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing congress of the United States, with a request that it might "be submitted to a convention of delegates, chosen in each state, by the people thereof, under the recommendation of its legislature, for their assent and ratification." This mode of proceeding was adopted; and by the convention, by congress, and by the state legislatures, the instrument was submitted to the people. They acted upon it, in the only manner in which they can act safely, effectively, and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several states; and where else could they have assembled? NO POLITICAL DREAMER WAS EVER WILD ENOUGH TO THINK OF BREAKING DOWN THE LINES WHICH SEPARATE THE STATES AND (OF COMPOUNDING THE AMERICAN PEOPLE INTO ONE COMMON MASS. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments. FROM "THESE CONVENTIONS THE CONSTITUTION DERIVES ITS WHOLE AUTHORITY. The assent of the states, in their Sovereign capacity, is implied in calling a convention, and Pomeroy's Const. Law, & 38. in thus submitting the constitution to the people.' But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance of, and could not be negatived by, the state governments. The constitution, when thus adopted, was of complete obligation, and bound the state sovereignties. 'It has been said, that the people had already surrendered all their powers to the state sovereignties, and had nothing more to give.' BUT, SURELY, THE QUESTION WHETHER "THEY MAY RESUME AND MODIFY THE POWERS GRANTED TO GOVERNMENT, DOES NOT REMAIN TO BE SETTLED IN THIS COUNTRY. Much more might the legitimacy of the general government be doubted, had it been created by the states. The powers delegated to the state sovereignties, were to be exercised by themselves, not by a distinct and independent sovereignty, created by themselves. To the formation of a league, such as was the confederation, the state sovereignties were certainly competent. But when, "in order to form a more perfect union," it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, and of deriving its powers directly from them, was felt and acknowledged by all." 'This government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent to have 1 Here, the sense intended by the states, in their sovereign capacity,' is obvious; for it was not 'the states in their sovereign capacity,' according to the present understanding of the expression, but the state legislatures, that called the conventions. 2 This, in the sense of others, would have meant that the people (whether of each state or of the whole country) had surrendered all their powers to themselves! It meant, that the people of each state had surrendered all their powers to their state government. The argument which he was refuting, was, that, as the authority throughout had been, at foundation, the action of the state governments, they were to be considered as the authors and creators of the federal constitution. 3 And this was the doctrine, which, as opposed to the argument that the federal government was created by the state governments, he was endeavoring to establish. |