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. On 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:

"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 — a 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.

body. I stated, further, that, if the question was asked of some politician, who had not considered the subject with sufficient accuracy, where the supreme power resided in our governments, he would answer, that it was vested in the State constitutions. This opinion approaches

near the truth, but does not reach it; for the truth is, that the supreme, absolute, and uncontrollable authority remains with the people. I mentioned, also, that the practical recognition of this truth was reserved for the honor of this country. I recollect no constitution founded on this principle; but we have witnessed the improvement, and enjoy the happiness of seeing it carried into practice. The great and penetrating mind of Locke seems to be the only one that pointed towards even the theory of this great truth.

His

"When I made the observation that some politicians would say the supreme power was lodged in our State constitutions, I did not suspect that the honorable gentleman from Westmoreland (Mr. Findley) was included in that description; but I find myself disappointed; for I imagined his opposition would arise from another consideration. position is, that the supreme power resides in the States, as governments; and mine is, that it resides in the people, as the fountain of government; that the people have not that the people meant not and that the people ought not to part with it to any government whatsoever. In their hands it remains secure. They can delegate it in such proportions, to such bodies, on such terms, and under such limitations, as they think proper. I agree with the members in opposition, that there cannot be two sovereign powers on the same subject. "I consider the people of the United States as forming one great community; and I consider the people of the different States as forming communities, again, on a lesser scale. From this great division of the people into distinct communities, it will be found necessary that different proportions of legislative powers should be given to the governments, according to the nature, number and magnitude of their objects." "

$29. Judicial Decisions as to the Nature of the

Constitution.

The construction put upon the Constitution by the Federal Judiciary has been uniform in favor of this position. Six years after the adoption of the Constitution, a majority of the Supreme

Court held that they had jurisdiction of a suit against a State by a citizen of another State. The dissenting judge conceded that the United States are sovereign as to all the powers of the government actually surrendered;" and as regards "the special objects of authority of the general Government, wherein the separate sovereignties of the States are blended in one common mass of supremacy."2 Of the majority, two held that the States had relinquished so much of their sovereignty as exempted them from suit.3 Chief Justice Jay said that the Federal Constitution had the same effect upon the people of the United States as a State Constitution upon the people of a State. Wilson held that the question for decision was this: "Do the people of the United States form a nation?"5 which he resolved in the affirmative:

"Whoever considers, in a combined and comprehensive view, the general texture of the Constitution, will be satisfied that the people of the United States intended to form themselves into a nation for national purposes. They instituted for such purposes a national government, complete in all its parts, with powers legislative, executive, and judiciary, and in all those powers extending over the whole nation.""

Later came the opinion of Chief Justice Marshall, who said: "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.""

"That the United States form, for many and for most important purposes, a single nation, has not yet been denied. In war, we are

§ 29 1 Chisholm v. Georgia, 2 Dallas, 419, A.D. 1793.

2 Justice Iredell, ibid., 435. See also his opinion in Penhallow v. Doane's Administrators, 3 Dallas, 54, 94.

3 Justice Blair, ibid., p. 452. Justice Cushing, ibid., p. 468.

4 "Every State Constitution is a compact made by and between the citizens of a State to govern them

selves 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." Ibid., p. 471.

5 Ibid., p. 453.

6 Ibid., p. 465.

7 McCulloch v. Maryland, 4 Wheaton, 316, 404, A.D. 1819.

one people. In making peace, we are one people. In all commercial regulations, we are one and the same people. In many other respects, the American people are one; and the government which is alone capable of controlling and managing their interests in all these respects, is the government of the Union. It is their government, and in that

character they have no other." 8

"Reference has been made to the political situation of these States anterior to its formation. It has been said that they were sovereign, were completely independent, and were connected with each other only by a league. This is true. But when these allied sovereigns converted their league into a government, when they converted their Congress of ambassadors deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature, empowered to enact laws on the most interesting subjects, the whole character in which the States appear underwent a change, the extent of which must be determined by a fair consideration of the instrument by which that change was effected.""

Even so strong an advocate of States' rights as Chief Justice Taney said, in the Dred Scott case:

"The new government was not a mere change in a dynasty, or in a form of government, leaving the nation or sovereignty the same, and clothed with all the rights, and bound by all the obligations of the preceding one. But when the present United States came into existence under the new government, it was a new political body, a new nation, then for the first time taking its place in the family of nations." 10

Finally, after the conclusion of the Civil War, the Supreme Court said, speaking through Chief-Justice Chase:

"The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States." 11

§ 30. Justification for Belief in Legality of Secession. Yet cogent as seem these arguments and precedents to members of a generation educated under the influence of the decisions of

8 Cohen v. Virginia, 6 Wheaton, 264, 413, 414, A.D. 1821.

9 Gibbons v. Ogden, 9 Wheaton, 1, 187, A.D. 1824.

10 Dred Scott v. Sandford, 19 Howard, 393, 441.

11 Texas v. White, 7 Wallace, 700, 725, quoted supra, § 20; White v. Cannon, 6 Wall. 443, 450; White v. Hart, 13 Wall. 646, 650; Williams v. Bruffy, 96 U. S. 173; Keith v. Clark, 97 U. S. 454.