CHAPTER II. NATURE OF THE CONSTITUTION AND THE PREAMBLE. NULLIFICATION, SECESSION AND RECONSTRUCTION. § 11. Nature of the Constitution of the United States. THE UNITED STATES are a nation. The Union is not a league, and cannot be dissolved except by a revolution. These are principles which have been established by the adjudications of the courts, the action of Congress and the executive, the acquiescence of the States, and the arbitrament of war. The question lies at the foundation of the government, and on it the people of the country were for three-quarters of a century divided. Now that a generation is in power which accepts the decision, whether sound or erroneous, as final, the arguments on either side deserve a dispassionate consideration. Those in favor of the legal right of secession are as follows: It is an axiom of political science that no law can bind a sovereign; for a sovereign is above all law. The Articles of Confederation were a league between sovereign States. Those sovereign States formed the Constitution. It was drafted by their delegates and ratified by them separately. The right to withdraw from the Union, it has been claimed, was reserved by New York and Virginia in their ratifications. It was called by its makers and statesmen, contemporary with its adoption, as well as since, a compact, a confederacy, and a federal government. The United States have the same name that was applied to them under the Articles of Confederation. There is nothing in the Constitution. to show that it is a different bond. No clause of that instrument gives power to coerce a State. Such power was suggested in the Federal Convention, but rejected by a large majority. The States are expressly recognized in that instrument. Should they refuse to act, for example, by failing to elect Senators, the Union would cease to exist. It must then, it is contended, be a league or com pact, and nothing more. Now a compact, even between individuals, ceases to be binding on the breach of one of its conditions. International law justifies the dissolution of a league for a similar reason. In the case of individuals the courts will determine whether on one side a breach has been made which relieves the other from the stipulations upon its part. There is no court with power to adjudicate between the claims of nations. Each independent State must be its own judge in such a case; and when one determines that there is cause sufficient to itself for the dissolution of a league or treaty of alliance, the league is thereby dissolved, in view of international law as well as in fact, and the aggrieved party has no remedy but war. If the Constitution is a league, it is no longer binding upon any one of the States which has determined to withdraw from it. The citizens of that State must, it is said, obey the will of the State in that respect, and in waging war under the State banner against the United States, they are not guilty of treason. The advocates of the prevailing view have denied that the States were sovereign before the adoption of the Constitution. They have denied that the States formed the Constitution, insisting that its preamble shows that it was adopted, not by the States, but by the people of the country at large, whose votes were taken in the States of their respective residence for convenience, without any legal signification. Even if the Constitution was formed by some of the States, they had the power to so merge themselves together in one nation as to make subsequent separation illegal. The proceedings of the Federal Convention, it is claimed, show that it was the intention of its members to establish a national form of government, and not a league. The fact that the document which they constructed terms itself a constitution and not a league, its provisions in other respects and the form of government which it creates operating directly upon the people, and not upon the States, with direct and popular representation in the lower house of Congress, and with a court having jurisdiction over States to act as a common umpire, all support the construction that it was its intention to establish an indissoluble union of indestructible States. The subsequent decisions of the Supreme Court of the United States, the action of the other departments of the government, the acquiescence of the States, and the result of the Civil War, have so firmly established this position, that its discussion now is less practical than academic. These contentions, however, will be considered separately. § 12. Sovereignty of the States before the Federal Constitution. Before the adoption of the Constitution, the several States who were parties to the Confederation were independent and sovereign. This theory, although disputed by high authority, seems to be established. Prior to the outbreak of the Revolution, the colonies were separate, connected with each other only through their common dependence upon Great Britain, differing in the race of their inhabitants, the character of their occupations, and the nature of their religion. When the difficulties arose with Great Britain, at the outbreak of the Revolutionary War, they sent delegates to the Continental Congress, which superintended the conduct of the war, and which passed and promulgated the Declaration of Independence. The extent of the powers of the Continental Congress, which were neither limited nor authorized by any charter, written law, or constitution, depended upon the necessity of the respective cases which arose; and it was in fact a provisional government.1 Had it continued thus until the adoption of the Federal Constitution, it might well have been claimed that the sovereignty was in its constituents at large, and that the several States were never sovereign or independent.2 Still, there, the members voted by States, and not as individuals, and were subject to be recalled by their constituencies at any time; and the interference with local affairs was made usually in the form of recommendations rather than orders.3 When, however, the Articles. § 12. 1 See Penhallow v. Doane's Administrators, 3 Dallas, 54, 81, 91, 93, 94, 111. 2 At the opening of the Continental Congress in 1774, Patrick Henry said that the colonial governments were at an end, America was thrown into one mass and in a state of nature, and that consequently the people ought to be considered as entitled to representation in accordance with their numbers. His motion, however, failed. (John Adams, Works, vol. ii, pp. 366-377; Curtis' Constitutional History, vol. i, pp. 9, 10.) Supra, § 4. 8 The Continental Congress "directed New York to arm and train her militia." Dane's Abridgement, vol. ix, Appendix, p. 39. of Confederation were ratified, the sovereignty of the several States was distinctly recognized. They provide expressly that "Each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right which is not by this Confederation expressly delegated to the United States in Congress assembled." * Thus we find in the first formal instrument which bound the States together, an express recognition of their sovereignty and independence. So, the bill of rights in the first Constitution of Massachusetts: "The people of this Commonwealth have the sole and exclusive right of governing themselves as a free, sovereign and independent State, and do, and forever hereafter shall, exercise and enjoy every power, jurisdiction, and right which is not, or may not hereafter be, by them expressly delegated to the United States of America in Congress assembled." 5 The treaties made by the United States with other nations, prior to the adoption of the Federal Constitution, also recognize either expressly or by implication, the independence and sovereignty of the several States. The Treaty of Amity and Commerce with France in 1778, recites in its preamble that it was made between 4 Articles of Confederation, II. "The word sovereign, as applied to a State, was first adopted in the Confederation, in the 2d article, and discontinued with it, except in New Hampshire. The Constitution of New Hampshire, adopted February, 1792, is the same as the said 1st article, 4th section, of the Massachusetts Bill of Rights." (Dane's Abridgement, vol. ix, Appendix, p. 29.) 5 Massachusetts Constitution of 1780, Part I, Article iv. The delegates to the State conventions of ratification received commissions or credentials from their respective governors; which, in the case of Georgia, contained the recital, "The State of Georgia by the grace of God, free, sovereign, and independent," and concluded, "In the year of our Lord 1777, and of our sovereignty and independence the eleventh." In New Jersey, "In the year of our Lord 1786, and of our sovereignty and independ ence the eleventh." In New York, "In the eleventh year of the independence of the said State." In North Carolina, "In the eleventh year of our independence, A.D. 1787." In Massachusetts, "In the eleventh year of the independence of the United States of America." In South Carolina, "In the year of our Lord 1787, and of the sovereignty and independence of the United States of America the elev enth." (Stephens, Constitutional View of the War between the States, vol. i, pp. 96-115.) "The Most Christian King and the thirteen United States of North America, to wit, New Hampshire, Massachusetts Bay, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia." " It speaks synonymously of "The United States of America," and of "the said States; "7 and of "the thirteen United States." 8 It refers to the ports, havens, roads, countries, islands, cities, towns, subjects, people and inhabitants; and the benefit, conveniency and safety of the said United States and each of them," and "of the said United States or any of them."9 The plenipotentiaries on the part of the United States who signed the same are set forth in the preamble as: "The United States, on their part, having fully impowered Benjamin Franklin, Deputy from the State of Pennsylvania to the General Congress, and President of the Convention of said State, Silas Deane, late Deputy from the State of Connecticut, to the said Congress, and Arthur Lee, Councellor at Law." 10 The Treaty of Alliance with France, signed and ratified on the same date, similarly names the separate States as parties to the same: "The Most Christian King and the United States of North America, to wit: New Hampshire, Massachusetts Bay, Rhode Island, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia; " 11 and the plenipotentiaries are similarly described.12 Similar language is found in the contract between the United States and the King of France in 1782, in regard to the payment of the French U. S. R. S. relating to District of Columbia and Post Roads, and Public Treaties, p. 203. Ibid., Article I, p. 204. Ibid., Article XXX, p. 212. * Ibid., Article III, IV, VI, VIII, XI, pp. 204, 205, 206, 207. In two articles, however, are references to the United States as an entity. Article XX, " For the better promoting of commerce on both sides, it is agreed that if a war shall break out between the said two nations," etc. Article XXII: "It shall not be lawful for any foreign priva- 10 Ibid., Preamble, p. 204. |