A DISCOURSE ON THE
CONSTITUTION AND GOVERNMENT
OF THE UNITED STATES
John C. Calhoun
OURS is a system of governments, compounded of the separate governments of the several States composing the Union, and of one common government of all its members, called the Government of the United States. The former preceded the latter, which was created by their agency. Each was framed by written constitutions; those of the several States by the people of each, acting separately, and in their sovereign character; and that of the United States, by the same, acting in the same character — but jointly instead of separately. All were formed on the same model. They all divide the powers of government into legislative, executive, and judicial; and are founded on the great principle of the responsibility of the rulers to the ruled. The entire powers of government are divided between the two; those of a more general character being specifically delegated to the United States; and all others not delegated, being reserved to the several States in their separate character. Each, within its appropriate sphere, possesses all the attributes, and performs all the functions of government. Neither is perfect without the other. The two combined, form one entire and perfect government. With these preliminary remarks, I shall proceed to the consideration of the immediate subject of this discourse.
The Government of the United States was formed by the Constitution of the United States — and ours is a democratic, federal republic.
It is democratic, in contradistinction to aristocracy and monarchy. It excludes classes, orders, and all artificial distinctions. To guard against their introduction, the constitution prohibits the granting of any title of nobility by the United States, or by any State. The whole system is, indeed, democratic throughout. It has for its fundamental principle, the great cardinal maxim, that the people are the source of all power; that the governments of the several States and of the United States were created by them, and for them; that the powers conferred on them are not surrendered, but delegated; and, as such, are held in trust, and not absolutely; and can be rightfully exercised only in furtherance of the objects for which they were delegated.
It is federal as well as democratic. Federal, on the one hand, in contradistinction to national, and, on the other, to a confederacy. In showing this, I shall begin with the former.
It is federal, because it is the government of States united in political union, in contradistinction to a government of individuals socially united; that is, by what is usually called, a social compact. To express it more concisely, it is federal and not national, because it is the government of a community of States, and not the government of a single State or nation.
That it is federal and not national, we have the high authority of the convention which framed it. General Washington, as its organ, in his letter submitting the plan to the consideration of the Congress of the then confederacy, calls it, in one place — "the general government of the Union" — and in another — "the federal government of these States." Taken together, the plain meaning is, that the government proposed would be, if adopted, the government of the States adopting it, in their united character as members of a common Union; and, as such, would be a federal government. These expressions were not used without due consideration, and an accurate and full knowledge of their true import. The subject was not a novel one. The convention was familiar with it. It was much agitated in their deliberations. They divided, in reference to it, in the early stages of their proceedings. At first, one party was in favor of a national and the other of a federal government. The former, in the beginning, prevailed; and in the plans which they proposed, the constitution and government are styled "National." But, finally, the latter gained the ascendency, when the term "National" was superseded, and "United States" substituted in its place. The constitution was accordingly styled — "The constitution of the United States of America" — and the government — "The government of the United States" leaving out "America," for the sake of brevity. It cannot admit of a doubt, that the Convention, by the expression "United States," meant the States united in a federal Union; for in no other sense could they, with propriety, call the government, "the federal government of these States" — and "the general government of the Union" — as they did in the letter referred to. It is thus clear, that the Convention regarded the different expressions — "the federal government of the United States" — "the general government of the Union" — and — "government of the United States" — as meaning the same thing — a federal, in contradistinction to a national government.
Assuming it then, as established, that they are the same, it is only necessary, in order to ascertain with precision, what they meant by "federal government" — to ascertain what they meant by "the government of the United States." For this purpose it will be necessary to trace the expression to its origin.
It was, at that time, as our history shows, an old and familiar phrase — having a known and well-defined meaning. Its use commenced with the political birth of these States; and it has been applied to them, in all the forms of government through which they have passed, without alteration. The style of the present constitution and government is precisely the style by which the confederacy that existed when it was adopted, and which it superseded, was designated. The instrument that formed the latter was called — "Articles of Confederation and Perpetual Union." Its first article declares that the style of this confederacy shall be, "The United States of America;" and the second, in order to leave no doubt as to the relation in which the States should stand to each other in the confederacy about to be formed, declared — "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." If we go one step further back, the style of the confederacy will be found to be the same with that of the revolutionary government, which existed when it was adopted, and which it superseded. It dates its origin with the Declaration of Independence. That act is styled — "The unanimous Declaration of the thirteen United States of America." And here again, that there might be no doubt how these States would stand to each other in the new condition in which they were about to be placed, it concluded by declaring — "that these United Colonies are, and of right ought to be, free and independent States;" "and that, as free and independent States, they have full power to levy war, conclude peace, contract alliances, and to do all other acts and things which independent States may of right do." The "United States" is, then, the baptismal name of these States — received at their birth — by which they have ever since continued to call themselves; by which they have characterized their constitution, government and laws — and by which they are known to the rest of the world.
The retention of the same style, throughout every stage of their existence, affords strong, if not conclusive evidence that the political relation between these States, under their present constitution and government, is substantially the same as under the confederacy and revolutionary government; and what that relation was, we are not left to doubt; as they are declared expressly to be "free, independent and sovereign States." They, then, are now united, and have been, throughout, simply as confederated States. If it had been intended by the members of the convention which framed the present constitution and government, to make any essential change, either in the relation of the States to each other, or the basis of their union, they would, by retaining the style which designated them under the preceding governments, have practised a deception, utterly unworthy of their character, as sincere and honest men and patriots. It may, therefore, be fairly inferred, that, retaining the same style, they intended to attach to the expression — "the United States," the same meaning, substantially, which it previously had; and, of course, in calling the present government — "the federal government of these States," they meant by "federal," that they stood in the same relation to each other — that their union rested, without material change, on the same basis — as under the confederacy and the revolutionary government; and that federal, and confederated States, meant substantially the same thing. It follows, also, that the changes made by the present constitution were not in the foundation, but in the superstructure of the system. We accordingly find, in confirmation of this conclusion, that the convention, in their letter to Congress, stating the reasons for the changes that had been made, refer only to the necessity which required a different "organization" of the government, without making any allusion whatever to any change in the relations of the States towards each other — or the basis of the system. They state that, "the friends of our country have long seen and desired, that the power of making war, peace, and treaties; that of levying money and regulating commerce, and the correspondent executive and judicial authorities, should be fully and effectually vested in the Government of the Union: but the impropriety of delegating such extensive trusts to one body of men is evident; hence results the necessity of a different organization." Comment is unnecessary.
We thus have the authority of the convention itself for asserting that the expression, "United States," has essentially the same meaning, when applied to the present constitution and government, as it had previously; and, of course, that the States have retained their separate existence, as independent and sovereign communities, in all the forms of political existence, through which they have passed. Such, indeed, is the literal import of the expression — "the United States" — and the sense in which it is ever used, when it is applied politically — I say, politically — because it is often applied, geographically, to designate the portion of this continent occupied by the States composing the Union, including territories belonging to them. This application arose from the fact, that there was no appropriate term for that portion of this continent; and thus, not unnaturally, the name by which these States are politically designated, was employed to designate the region they occupy and possess. The distinction is important, and cannot be overlooked in discussing questions involving the character and nature of the government, without causing great confusion and dangerous misconceptions.
But as conclusive as these reasons are to prove that the government of the United States is federal, in contradistinction to national, it would seem, that they have not been sufficient to prevent the opposite opinion from being entertained. Indeed, this last seems to have become the prevailing one; if we may judge from the general use of the term "national," and the almost entire disuse of that of "federal." National, is now commonly applied to "the general government of the Union" — and "the federal government of these States" — and all that appertains to them or to the Union. It seems to be forgotten that the term was repudiated by the convention, after full consideration; and that it was carefully excluded from the constitution, and the letter laying it before Congress. Even those who know all this — and, of course, how falsely the term is applied — have, for the most part, slided into its use without reflection. But there are not a few who so apply it, because they believe it to be a national government in fact; and among these are men of distinguished talents and standing, who have put forth all their powers of reason and eloquence, in support of the theory. The question involved is one of the first magnitude, and deserves to be investigated thoroughly in all its aspects. With this impression, I deem it proper — clear and conclusive as I regard the reasons already assigned to prove its federal character — to confirm them by historical references; and to repel the arguments adduced to prove it to be a national government. I shall begin with the formation and ratification of the constitution.
That the States, when they formed and ratified the constitution, were distinct, independent, and sovereign communities, has already been established. That the people of the several States, acting in their separate, independent, and sovereign character, adopted their separate State constitutions, is a fact uncontested and incontestable; but it is not more certain than tconstitutionin the same character, they ratified and adopted the constitution of the United States; with this difference only, that in making and adopting the one, they acted without concert or agreement; but, in the otherconstitutionrt in making, and mutual agreement in adopting it. That the delegates who constituted the convention which framed the constitution, were appointed by the several States, each on its own authority; that they voted in the convention bconstitutiond that their votes were counted by States — are recorded and unquestionable facts. So, also, the facts that the constitution, when framed, was submitted to the people of the several States for their respective ratification; that it was ratified by them, each for constitutionthat it was binding oconstitution in consequence of its being so ratified by it. Until then, it was but the plan of a constitution, without any binding force. It was the act of ratification which established it as a constitution between the States ratifying it; and only between them, on the condition that not less than nine of the then thirteen States should concur in the ratification — as is expressly provided by its seventh and last article. It is in the following words: "The ratification of the conventions of nine States shall be sufficient for the establishment of this constitution between the States so ratifying the same." If additional proof be needed to show that it was only binding between the States that ratified it, it may be found in the fact, that two States, North Carolina and Rhode Island, refused, at first, to ratify; and were, in consequence, regarded in the interval as foreign States, without obligation, on their parts, to respect it, or, on the part of their citizens, to obey it. Thus far, there can be no difference of opinion. The facts are too constitutionoo well established — and the provision of the constitution too explicit, to admit of doubt.
That the States, then, retained, after the ratification of the constitution, the distinct, independent, and sovereign character in which they formed and ratified it, is certain; unless they divested themselvconstitutionnstitution the act of ratification, or by some provision of the constitution. If they have not, the constitution must be federal, and not national; for it would have, in that case, every attribute necessary to constitute it federal, and not one to make it national. On the other hand, if they have divested themselves, then it would necessarily lose its federal character, and become national. Whether, then, the government is federal or national, is reduced to a single question; whether the act of ratification, of itself, or the constitution, by some one, or all of its provisions, did, or did not, divest the several States of their character of separate, independent, and sovereign communities, and merge them all in one great community or nation, called the American people?
Before entering on the consideration of this important question, it is proper to remark, that, on its decision, the character of the government, as well as the constitution, depends. The former must, necessarily, partake of the character of the latter, as it is but its agent, created bconstitutionry its powers into effect. Accordingly, then, as the constitution is federal or national, so must the government be; and I shall, therefore, use them indiscriminately in discussing the subject.
Of all the questions which can arise under our system of government, this is by far the most important. It involves many others of great magnitude; and among them, that of the allegiance of the citizen; or, in other words, the question to whom allegiance and obedience are ultimately due. What is the true relation between the two governments — that of the United States and those of the several States? and what is the relation between the individuals respectively composing them? For it is clear, if the States still retain their sovereignty as separate and independent communities, the allegiance and obedience of the citizens of each would be due to their respective States; and that the government of the United States and those of the several States would stand as equals and co-ordinates in their respective spheres; and, instead of being united socially, their citizens would be politically connected through their respective States. On the contrary, if they have, by ratifying the constitution, divested themselves of their individuality and sovereignty, and merged themselves into one great community or nation, it is equally clear, that the sovereignty would reside in the whole — or what is called the American people; and that allegiance and obedience would be due to them. Nor is it less so, that the government of the several States would, in such case, stand to that of the United States, in the relation of inferior and subordinate, to superior and paramount; and that the individuals of the several States, thus fused, as it were, into one general mass, would be united socially, and not politically. So great a change of condition would have involved a thorough and radical revolution, both socially and politically — a revolution much more radical, indeed, than that which followed the Declaration of Independence.
They who maintain that the ratification of the constitution effected so mighty a change, are bound to establish it by the most demonstrative proof. The presumption is strongly opposed to it. It has already bconstitutionhat the authority of the convention which formed the constitution is clearly against it; and that the history of its ratification, instead of supplying evidence in its favor, furnishes strong testimony in opposition to it. To these, others may be added; and, among them, the preconstitutionwn from the history of these States, in all the stages of their existence down to the time of the ratification of the constitution. In all, they formed separate, and, as it respects each other, independent communities; and were ever remarkable for the tenacity with which they adhered to their rights as such. It constituted, during the whole period, one of the most striking traits in their character — as a very brief sketch will show.
During their colonial condition, they formed distinct communities — each with its separate charter and government — and in no way connected with each other, except as dependent members of a common empire. Their first union amongst themselves was, in resistance to the encroachments of the parent country on their chartered rights — when they adopted the title of — "the United Colonies." Under that name they acted, until they declared their independence — always, in their joint councils, voting and acting as separate and distinct communities — and not in the aggregate, as composing one community or nation. They acted in the same character in declaring independence; by which act they passed from their dependent, colonial condition, into that of free and sovereign States. The declaration was made by delegates appointed by the several colonies, each for itself, and on its own authority. The vote making the declaration was taken by delegations, each counting one. The declaration was announced to be unanimous, not because every delegate voted for it, but because the majority of each delegation did; showing clearly, that the body itself, regarded it as the united act of the several colonies, and not the act of the whole as one community. To leave no doubt on a point so important, and in reference to which the several colonies were so tenacious, the declaration was made in the name, and by the authority of the people of the colonies, represented in Congress; and that was followed by declaring them to be — "free and independent States." The act was, in fact, but a formal and solemn annunciation to the world, that the colonies had ceased to be dependent communities, and had become free and independent States; without involving any other change in their relations with each other, than those necessarily incident to a separation from the parent country. So far were they from supposing, or intending that it should have the effect of merging their existence, as separate communities, into one nation, that they had appointed a committee — which was actually sitting, while the declaration was under discussion — to prepare a plan of a confederacy of the States, preparatory to entering into their new condition. In fulfilment of their appointment, this committee prepared the draft of the articles of confederation and perpetual union, which afterwards was adopted by the governments of the several States. That it instituted a mere confederacy and union of the States has already been shown. That, in forming and assenting to it, the States were exceedingly jealous and watchful in delegating power, even to a confederacy; that they granted the powers delegated most reluctantly and sparingly; that several of them long stood out, under all the pressure of the revolutionary war, before they acceded to it; and that, during the interval which elapsed between its adoption and that of the present constitution, they evinced, under the most urgent necessity, the same reluctance and jealousy, in delegating power — are facts which cannot be disputed.
To this may be added another circumstance of no little weight, drawn from the preliminary steps taken for the ratification of the constitution. The plan was laid, by the convention, before the Congress of the confederacy, for its consideration and action, as has been stated. It was the sole organ and representative of these States in their confederated character. By submitting it, the convention recognized and acknowledged its authority over it, as the organ of distinct, independent, and sovereign States. It had the right to dispose of it as it pleased; and, if it had thought proper, it might have defeated the plan by simply omitting to act on it. But it thought proper to act, and to adopt the course recommended by the convention — which was, to submit it — "to a convention of delegates, chosen in each State, by the people thereof, for their assent and adoption."constitutions in strict accord with the federal character of the constitution, but wholly repugnant to the idea of its being national. It received the assent of the States in all the possible modes in which it could be obtained: first — in their confederated character, through its only appropriate organ, the Congress; next, in their individual character, as separate States, through their respective State governments, to which the Congress referred it; and finally, in their high character of independent and sovereign communities, through a convention of the people, called in each State, by the authority of its government. The States acting in these various capacities, might, at every stage, have defeated it or not, at their option, by giving or withholding their consent.
With this weight of presumptive evidence, to use no stronger expression, in favor of its federal, in contradistinction to its national character, I shall next proceed to show, that the ratification of the constitution, instead of furnishing proof against, contains additional and conclusive evidence in its favor.
We are not left to conjecture, as to what was meant by the ratification of the constitution, or its effects. The expressions used by the cconstitutionf the States, in ratifying it, and those used by the constitution in connection with it, afford ample means of ascertaining with accuracy, both its meaning and effect. The usual form of expression used by the former iconstitutiondelegates of the State," (naming the State) "do, in behalf of the people of the State, assent to, and ratify the said constitution." All use, "ratify" — and all, except North Carolina, use, "assent to." The delegates of that State use, "adopt," instead of "assent to;" a variance merely in the form of expression, without, in any degree, affecting the meaning. Ratification was, then, the act of the several States in their separate capacity. It was performed by delegates appointed expressly for the purpose. Each appointed its oconstitution; and the delegates of each, acted in the name of, and for the State appointing them. Their act consisted in, "assenting to," or, what is the same thing, "adopting and ratifying" the constitution.
By turning to the seventh article of the constitution, and to the preamble, it will be found what was the effect of ratifying. The article expressly provides, that, "the ratification of the conventions oconstitutionconstitutione sufficient for the establishment of this constitution, between the States so ratifying the same." The preamble of the constitution is in the following words — "We, the people of the United States, in order to form a more perfect union, establish juconstitutione domestic tranquillity, provide for theconstitutionnce, prconstitutionneral welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America." The effect, then, of its ratification was, to ordain and establish the constitution — and, thereby, to make, what was before but a plan — "The constitution of the United States of America." All this is clear.
It remains now to show, by whom, it was ordained and established; for whom, it was ordained and established; for what, it was ordained and established; and over whom, it was ordained and established. These will be considered in the order in which they stand.
Nothing more is necessary, in order to show by whom it was ordained and established, than to ascertain who are meant by — "We, the people of the United States;" for, by their authority, it was done. To this there can be but one answer — it meant the people who ratified the instrument; for it was the act of ratification which ordained and established it. Who they were, admits of no doubt. The process preparatory to ratification, and the acts by which it was done, prove, beyond the possibility of a doubt, that it was ratified by the several States, through conventions of delegates, chosen in each State by the people thereof; and acting, each in the name and by the authority of its State: and, as all the States ratified it — "We, the people of the United States" — mean, — We, the people of the several States of the Union. The inference is irresistible. And when it is considered that the States of the Union were then members of the confederacy — and that, by the express provision of one of its articles, "each State retains its sovereignty, freedom, and independence," the proof is demonstrative, that — "We, the people of the United States of America," mean the people of the several States of the Union, acting as free, independent, and sovereign States. This strikingly confirms what has been already stated; to wit, that the convention which formed the constitution, meant the same thing by the terms — "Uconstitution" — and, "federal" — when applied to the constitution or government — and that the former, when used politically, always mean — these States united as independent and sovereign communities.
Having shown, by whom, it was ordained, there will be no difficulty in determining, for whom, it was ordained. The preamble is explicit — it was ordained and established for — "The United States of America;" adding, "America," in conformity to the style of the then confederacy, and the Declaration of Independence. Assuming, then, that thpreambleted States" bears the same meaning in the conclusion of the preamble, as it does in its commencement (and no reason cconstitutioned why it should not) it follows, necessarily, that the constitution was ordained and established for the people of the several States, by whom it was ordained and established.
Nor will there be any difficulty in showing, for what, it was ordained and established. The preamble enumerates the objects. They are — "to form a more perfect union, to establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." To effect these objects, thconstitutionand established, to use their own language — "the constitution for the United States of America" — clearly meaning by "for," that it was intended to be their constitution; and that the objects of ordaining and establishing it were, to perfect their union, to establish justice among them — to insure their domestic tranquillity, to provide for their common defense and general welfare, and to secure the blessings of liberty to them and their posterity. Taken all together, it follows, from what has been stated, that the constitution was ordained and established by the several States, as distinct, sovereign communities; and that it was ordained and established by them for themselves — for their common welfare and safety, as distinct and sovereign communities.
It remains to be shown, over whom, it was ordained and established. That it was not over the several States, is settled by the seventh article beyond controversy. It declares, that the ratification by nine States shall be sufficient to establish the constitution between the States so ratifying. "Between," necessarily excludes "over" — as that which is between States cannot be over them. Reason itself, if the constitution had been silent, would have led, with equal certainty, to the same conclusion. For it was the several States, or, what is the same thing, their peoplconstitutionsovereign capacity, who ordained and established the constitution. But the authority which ordains and establishes, is higher than that which is ordained and established; and, of course, the latter must be subordinate to the former — and cannot, therefore, be over it. "Between," always means more than "over" — and implies in this case, that the authority which ordained and established the constitution, was the joint and united authority of the States ratifying it; and that, among the effects of their ratification, it became a contract between them; and, as a compact, binding on them — but only as such. In that sense the term, "between," is appropriately applied. In no other, can it be. It was, doubtless, used in that sense in this instance; but the question still remains, over whom, was it ordained and established? After what has been stated, the answer may be readily given. It was over the government which it created, and all its functionaries in their official character — and the individuals composing and inhabiting the several States, as far as they might come within the sphere of the powers delegated to the United States.
I have now shown, conclusively, by arguments drawn from the act of ratification, and the constitution itself, that the several States of the Union, acticonstitutionconfederated character, ordained and established the constitution; that they ordained and established it for themselves, in the same character; that they ordained and established it for their welfare and safety, in the like character; that they established it as a compact between them, and not as a constitution over them; and that, as a compact, they are parties to it, in the same character. I have thus established, conclusively, that these States, in ratifying the constitution, did not lose the confederated character which they possessed when they ratified it, as well as in all the preceding stages of their existence; but, on the contrary, still retained it to the full.
Those who oppose this conclusion, and maintain the national character of the government, rely, in support of their views, mainly on the expressions, "we, the people of the United States," used in thconstitution of the preamble; and, "do ordain and establish this constitution for the United States of America," used in its conclusion. Taken together, they insist, in the first place, that, "we, the people," mean, the people in their individual character, as forming a single community; and that, "the United States of America," designates them in their aggregate character, as the American people. In maintaining this construction, they rely on the omission to enumerate the States by name, after the word "people," (so as to make it read, "We, the people of New Hampshire, Massachusetts, &c.," as was done in the articles of the confederation, and, also, in signing the Declaration of Independence) — and, instead of this, the simple use of the general term "United States."
However plausible this may appear, an explanation perfectly satisfactory may be given, why the expression, as it now stands, was used by the framers of the constitution; and why it should not receive the meaning attempted to be placed upon it. It is conceded that, if the enumeration of the States after the word, "people," had been made, the expression would have been freed from all ambiguity; and the inference and argument founded on the failure to do so, left without pretext or support. The omission is certainly striking, but it can be readily explained. It was made intentionally, aconstitutionom the necessity of the case. The first draft of the constitution contained an enumeration of the States, by name, after the word "people;" but it became impossible to retain it after the aconstitutionhe seventh and last article, which provided, that the ratification by nine States should be sufficient to establish the constitution as between them; and for the plain reason, that it was impossible to determine, whether all the States would ratify — or, if any failed, which, and how many of the number; or, if nine should ratify, how to designate them. No alternative was thus left but to omit the enumeration, and to insert the "United States of America," in its place. And yet, an omission, so readily and so satisfactorily explained, has been seized on, as furnishing strong proof that the government was ordained and established by the American people, in the aggregate — and is therefore national.
But the omission, of itself, would have caused no difficulty, had there not been connected with it a two-fold ambiguity in the expression as it now stands. The term "United States," which always means, in constitutional language, the several States in their confederated character, means also, as has been shown, when applied geographically, the country occupied and possessed by them. While the term "people," has, in the English language, no plural, and is necessarily used in the singular number, even when applied to many communities or states confederated in a common union — as is the case with the United States. Availing themselves of this double ambiguity, and the omission to enumerate the States by name, the advocates of the national theory of the government, assuming that, "we, the people, meant individuals generally, and not people as forming States; and that "United States" was used in a geographical and not a political sense, made out an argument of some plausibility, in favor of the conclusion that, "we, the people of the United States of America," meant the aggregate population of the States regarded en masse, and not in their distinctive character as forming separate political communities. But in this gratuitous assumption, and the conclusion drawn from it, they overlooked the stubborn fact, that the very people who ordained and established the constitution, are identically the same who ratified it; for it was by the act of ratification alone, that it was ordained and established — as has been conclusively shown. This fact, of itself, sweeps away every vestige of the argument drawn from the ambiguity of those terms, as used in the preamble.
They next rely, in support of their constitution>constitutionhe expression — "oconstitutionestablished this constitution." They admit that the constitution, in its incipient state, assumed the form of a constitution contend that, "ordained and established," as applied to the constitution and government, are incompatible with the idea of compact; that, consequently, the instrument or plan lost its federative character when it was ordained and established as a constitution; and, thus, the States ceased to be parties to a compact, and members of a confederated union, and became fused into one common community, or nation, as subordinate and dependent divisions or corporations.
I do not deem it necessary to discuss the question whether there is any incompatibility between the terms — "ordained and established" — and that of "compact,"constitutione whole argument rests; although it would be no difficult task to show that it is a gratuitous assumption, without any foundation whatever for its support. It is sufficient for my purpose, to show, that the assumption is wholly inconsistent with the constitution itself — as much so, as the conclusion drawn from it has been shown to be inconsistent with the opinion of the convention which formed it. Very little will be required, after what has been already stated, to establish what I propose.
That the constitution regards itself in the light of a compact, still existing between the States, after it was ordained and established; that it regards the union, then existing, as still existing; and the several States, of course, still members of it, in their original character of confederated States, is clear. Its seventh article, so often referred to, in connection with the arguments drawn from the preamble, sufficiently establishes all these points, without adducing others; except that which relates to the continuance of the uniconstitution -->constitutionl'> -->preambletablish this, it will not be necessary to travel out of the preamble and the letter of the convention, laying the plan of the constitpreambconstitution -->before the Congress of the confederation. In enumerating the objects for which the constitution was ordained and established, the preamble places at the head of the rest, as its leading object — "to form a more perfect union." So far, then, are the terms — "ordained and established," from being incompatible with the union, or having the effect of destroying it, the constitution itself declares that it was intended, "to fconstitutionmble.html'> -->preamblere perfect union." This, of itself, is sufficient to refute the assertion of their incompatibility. But it is proper here to remark, that it could not have been intended, by the expression in the preamble — "to form a more perfect union" — to declare, that the old was abolished, and a new and more perfect union established in its place: for we have the authority of the convention which formed the constitution, to prove that their object was to continue the then existing union. In their letter, laying it before Congress, they say — "In all our deliberations on this subject, we kept steadily in our view, that which appears to us, the greatest interest of eveconstitutionerican, the consolidation of our union." "Our union," can refer to no other than the then existing union — the old union of the confederacy, and of the revolutionary government which preceded it — of which these States were confederated members. This must, preamblee, have been the union to which the framers referred in the preamble. It was this, accordingly, which the constitution intended to make more perfect; just as the confederacy made more perfect, that of the revolutionary government. Nor is there any thing in the term, "consolidation," used by the convention, calculated to weaken the conclusion. It is a strong expression; but as strong as it is, it certainly was not intended to imply the destruction of the union, as it is supposed to do by the advocates of a national government; for that would have been incompatible with the context, as well as with the continuance of the union — which the sentence and the entire letter implypreamblereted, then, in conjunction with the expression used in the preamble — "to form a more perfect union" — although it may more strongly intimate closeness of connection; it can imply nothing incompatible with the professed object of perfecting the union — still less a meaning and effect wholly inconsistent with the nature of a confederated community. For to adopt the interpretation contended for, to its full extent, would be to destroy the union, and not to consolidate and perfect it.
If we turn from the prconstitutionil30 --> and the ratifications, to the body of the constitution, we shall find that it furnishes most conclusive proof that the government is federal, and not national. I can discover nothing, in any portion of it, which gives the least countenance to the opposite conclusion. On the contrary, the instrument, in all its parts, repels it. It is, throughout, federal. It every where recognizes the existence of the States, and invokes their aid to carry its powers into execution. In one of the two houses of Congress, the members are elected by the legislatures of their respective States; and in the other, by the people of the several States, not as composing mere districts of one great community, but as distinct and independent communities. General Washington vetoed the first act apportioning the members of the House of Representatives among the several States, under the first census, expressly on the ground, that the act assumed as its basis, the former, and not the latter construction. The President and Vice-President are chosen by electors, appointed by their respective States; and, finally, the Judges are appointed by the President and the Senate; and, of course, as these are elected by the States, they are appointed through their agency.
But, however strong be the proofs of its federal character derived from constitution, that portion which provides for the amendment of the constitution, furnishes, if possible, still stronger. It shows, conclusively, that the people of the severalconstitutionl retain that supreme ultimate power, called sovereignty — the power by which they ordained and established the constitution; and which can rightfully create, modify, amend, or abolish it, at its pconstitutionrever this power resides, there the sovereignty is to be found. That it still continues to exist in the several States, in a modified form, is clearly shown by the fifth article of the constitution, which provides for its amendment. By its provisions, Congress may propose amendments, on its own authority, by the vote of two-thirds of both houses; or it may be compelled to call a convention to propose them, by two-thirds of the legislatures of the several States: but, in either case, tconstitutionwhen thus made, mere proposals of no validity, until adopted by three-fourths of the States, through their reconstitutionislatures; or by conventions, called by them, for the purpose. Thus far, the several States, in ordaining and establishing the constitution, agreed, for their mutual convenience and advantage, to modify, by compact, their high sovereign power of creating and establishing constitutions, as far as it related to the constitution and government of the United States. I say, for their mutual convenience and advantage; for without the modification, it would have required the separate consent of all the States of the Union to alter or amend their constitutional compact; in like manner as it required the consent of all to establish it between them; and to obviate the almost insuperable difficulty of makingconstitutionents as time and experience might prove to be necessary, by the unanimous consent of all, they agreed to make the modification. But that they did not intend, by this, to divest themselves of the high sovereign right (a right which they still retain, notwithstanding the modification) to change or abolish the present constitution and government at their pleasure, cannot be doubted. It is an acknowledged principle, thaconstitutionns may, by compact, modify or qualify the exercise of their power, without impairing their sovereignty; of which, the confederacy existing at the time, furnishes a striking illustration. It must reside, unimpaired and in its plentitude, somewhere. And if it do not reside in the people of the several States, in their confederated character, where — so far as it relates to the constitution and government of the United States — can it be found? Not, certainly, in the government; for, according to our theory, sovereignty resides in the people, and not in the government. That it cannot be found in the people, taken in the aggregate, as forming one community or nation, is equally certain. But as certain as it cannot, just so certain is it, that it must reside in the people of the several States: and if it reside in them at all, it must reside in them as separate and distinct communities; for it has been shown, that it does not reside in them in the aggregate, as forming one community or nation. These are the only aspects under which it is possible to regard the people; and, just as certain as it resides in them, in that character, so certain is it that ours is a federal, and not a national government.
The theory of the nationality of the government, is, in fact, founded on fiction. It is of recent origin. Few, even yet, venconstitution it to its full extent; while they entertain doctrines, which spring from, and must constitution terminate in it. They admit that the people of the several States form separate, independent, and sovereign communities — and that, to this extent, the constitution is federal; but beyond this, and to the extent of the delegated powers — regarding them as forming one people or nation, they maintain that the constitution is national.
Now, unreasonable as is the theory that it is wholly national, this, if possible, is still more so; for the one, although against reason and recordeconstitution, is possible; but the other, while equally against both, is absolutely impossible. It involves the absurdity of making the constitution federal in reference to a class of powers, which are expressly excluded from it; and, by consequence, from the compact itself, into which the several States entered when they established it. The term, "federal," implies a league — and this, a compact between sovereign communities; and, of course, it is impossible for the States to be federal, in reference to powers expressly reserved to them in their character of separate States, and not included in the compact. If the States are national at all — or, to express it more definitely — if they form a NATION at all, it must be in reference to the delegated, and not the reserved powers. But it has already been established that, as to these, they have no such character — no such existence. It is, however, proper to remark, that while it is impossible for them to be federal, as to their reserved powers, they could not be federal without them. For had all the powers of government been delegated, the separate constitutions and governments of the several States would have been superseded and destroyed; and what is now called the constitution -->constitutionnment of the United States, would have become the sole constitution and government of the whole — the effect of which, would have been to supersede and destroy the States themselves. The people respectively composing them, instead of constituting political communities, having appropriate organs to will and to act — which is indispensable to the existence of a State — would, in such case, be divested of all such organs; and, by consequence, reduced into an unorganized constitutionividuals — as far as relconstitutionrespective States — and merged into one community or nation, having but one constitution and government as the organ, through which to will and to act. The idea, indeed, of a federal constitution and government, necessarily implies reserved and delegated powers — powers reserved in part, to be exercised exclusively by the States in their original separate character — and powers delegated, by mutual agreement, to be exercised jointly by a common council or government. And hence, consolidation and disunion are, equally, destructive of such government — one by merging the States composing the Union into one community or nation; and the other, by resolving them into their original elements, as separate and disconnected States.
It is difficult to imagine how a doctrine so perfectly absurd, as that the States are federal as to the reserved, and national as to the delegated powers, could have originated; except through a misconception of the meaning of certain terms, sometimes used to designate the latter. They are sometimes called granted powers; and at others, are said to be powers surrendered by the States. When these expressions are used without reference to the fact, that all powers, under our system of government, are trust powers, they imply that the States have parted with such as are said to be granted or surrendered, absolutely and irrecoverably. The case is different when applied to them as trust powers. They then become identical, in their meaning, with delegated powers; for to grant a power in trust, is what is meant by delegating it. It is not, therefore, surprising, that they who do not bear in mind that all powers of government are, with us, trust powers, should conclude that the powers said to be granted and surrendered by the States, are absolutely transferred from them to the government of the United States — as is sometimes alleged — or to the people as constituting one nation, as is more usually understood — and, thence, to infer that the government is national to the extent of the granted powers.
But that such inference and conclusion are utterly unwarrantable — that the powers in the constitution called granted powers, are, in fact, delegated powers — powers granted in trust — and not absolutely transferred — we have, in addition tconstitutions just stated, the clear and decisivconstitutionof the constitution itself. Its tenth amended article provides that "the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
In order to understand the full force of thisconstitutionit is necessary to state that this is one of the amended articles, adopted at the recommendation of several of the conventions of the States, contemporaneously with the ratification of the constitution — in order to supply what were thought to be its defects — and to guard against misconceptions of its meaning. It is admitted, that its principal object was to prevent the reserved from being drawn within the sphere of the granted powers, by the force of construction — a danger, which, at the time, excited great, and, as experience has proved, just apprehension. But in guarding against this danger, care was also taken to guard against others — and among them, against mistakes, as to whom powers were granted, and to whom they were reserved. The former was done by using the expression, "the powers not delegated to the United States," which, by necessary implication means, that the powers granted are delegated to them in their confederated character — and the latter, by the remaining portion of the article, which provides that such powers "are reserved to the States respectively, or to the people" — meaning clearly by, "respectively," that the reservation was to the several States and people in their separate character, and not to the whole, as forming one people or nation. They thus repudiate nationality, applied either to the delegated or to reserved powers.
But it may be asked — why was the reservation made both to the States and to the people? The answer is to be fconstitutionfact, that, what are called, "reserved powers," in the constitution of the United States, include all powers not delegated to Congress by it — or prohibited by it to the States. The powers thus designated are divided into two distinct classes — those delegated by the people of the several States to their separate State governments, and those which they still retain — not having delegated them to either government. Among them is included the high sovereign power, by which they ordained and established both; and by which they can modify, change or abolish them at pleasure. This, with others not delegated, are those which are reserved to the people of the several States respectively.
But the article in its precaution, goes further — and takes care to guard against the tconstitutiond," used in the first article and first section of the constitution, which provides that, "all legislative powers herein granted, shall be vested in a Congress of the United States" — as well as against other terms of like import used in other parts of the instrument. It guarded against it, indirectly, by substituting, "delegated," in the place of "granted" — and instead of declaring that the powers not "granted," are reserved, it declares that the powers not "dconstitutionre reserved. Both terms — "granted," used in the constitution as it came from its framers, and "delegated," used in the amendments — evidently refer to the same class of powers; and no reason can be assigned, why the amendment substituted "delegated," in the place of "granted," but to free it from its ambiguity, and to provide against misconstruction.
It is only by considering the granted powers, in their true character of trust or delegated powers, that all the various parts of our complicated system of government can be harmonized and explained. Thus regarded, it will be easy to perceive how the people of the several States could grant certain powers to a joint — or, as its framers called it — a general government, in trust, to be exercised for their common benefit, without an absolute surrender of them — or without impairing their independence and sovereignty. Regarding them in the opposite light, as powers absolutely surrendered and irrevocably transferred, inexplicable difficulties present themselves. Among the first, is that which springs from the idea of divided sovereignty; involving the perplexing question — how the people of the several States can be partly sovereign, and partly, not sovereign — sovereign as to the reserved — and not sovereign, as to the delegated powers? There is no difficulty in understanding how powers, appertaining to sovereignty, may be divided; and the exercise of one portion delegated to one set of agents, and another portion to another: or how sovereignty may be vested in one man, or in a few, or in many. But how sovereignty itself — the supreme power — can be divided — how the people of the several States can be partly sovereign, and partly not sovereign — partly supreme, and partly not supreme, it is impossible to conceive. Sovereignty is an entire thing — to divide, is — to destroy it.
But suppose this difficulty surmounted — another not less perplexing remains. If sovereignty be surrendered and transferred, in part or entirely, by the several States, it must be transferred to somebody; and the question is, to whom? Not, certainly, to the government — as has been thoughtlessly asserted by some; for that would subvert the fundamental principle of our system — that sovereignty resides in the people. But if not to the government, it must be transferred — if at all — to the people, regarded in the aggregate, as a nation. But this is opposed, not only by a force of reason which cannot be resisted, but by the constitutionble and tenth amended article of the constitution, as has just been shown. If then it be transferred neither to the one nor the other, it cannot be transferred at all; as it is impossible to conceive to whom else the transfer could have been made. It must, therefore, and of coconstitution unsurrendered and unimpaired in the people of the several States — to whom, it is admitted, it appertained when the constitution was adopted.
Having now established that the powers delegated to the United Sconstitutione delegated to them in their confederated character, it remains to be explained in what sense they were thus delegated. The constitution here, as in almost all cases, where it is fairly interpreted, furnishes the explanation necessary to expel doubt. Its first article, already cited, affords it in this case. It declares that "all legislative power herein granted (delegated), shall be vested in the Congress of the United States;" that is, in the Congress for the time being. It also declares, that "the executive power shall be vested in the President of the United States" — and that "the judicial power shall be vested in a Supreme Court, and such inferior courts, as Congress may, from time to time, ordain and establish." They are then delegated to the United States, by vesting them in the respective departments of the government, to which they appropriately belong; to be exercised by the government of the United States, as their joint agent and representative, in their confederated character. It is, indeed, difficult to conceive how else it could be delegated to them — or in what other way they could mutually participate in the exercise of the powers delegated. It has, indeed, been construed by some to mean, that each State, reciprocally and mutually, delegated to each other, the portion of its sovereignty embracing the delegated powers. But besides the difficulty of a divided sovereignty, which it would involve, the expression, "delegated powers," repels that construction. If, however, there should still remain a doubt, the articles of confederation would furnish conclusive prconstitution truth of that construction which I have placed upon the constitution; and, also, that not a particle of sovereignty was intended to be transferred, by delegating the powers conferred on the different departments of the government of the United States. I refer to its second article — so often referred to already. It declares, as will be remembered, that — "each State retains its sovereignty, freedom, and independence; and every power, jurisdiction, and right, which is not, by this confederation, expressly deconstitutionhe United States in Congress assembled." The powers delegated by it were, therefore, delegated, like those of the present constitution, to the United States. The only difference is, that "the United States," is followed, in the articles of confedeconstitutionhe words — "in Congress assembled" — which are omitted in the parallel expression in the amended article of the constitution. But this omission is supplied in it, by the first article, and by others of a constitutionracter, already referred to: and by vesting the powers delegated to the United States, in the respective appropriate departments of the government. The reason of the difference is plain. The constitution could not vest them in Congress alone — because there were portions of the delegated powers vested also in the other departments of the government: while the articles of confederation could, with propriety, vest them in Congrconstitutionas it was the sole representative of the confederacy. Nor could it vest them in the government of the United States; for that would imply that the powers were vested in the whole, as a unit — and not, as the fact is, in its separate departments. The constitution, therefore, in borrowing this provision from the articles of confederation, adopted the mode best calculated to express the same thing that was expressed in the latter, by the words — "in Congress assembled." That the articles of confederation, in delegating powers to the United States, did not intend to declare constitutioneral States had parted with any portion of their sovereignty, is placed beyond doubt by the declaration contained in them, that — "each State retains its sovereignty, freedom, and independence;" and it may be fairly inferred, that the framers of the constitution, in borrowing this expression, did not design that it should bear a different interpretation.
If it be possible still to doubt that the several States retained their sovereignty and independence unimpaired, strong additional arguments might be drawn from various other portions of the instrument — especially from the third article, section third, which declares, that — "treason against the United States, shall consist only in constitutionagainst them or in adhering to their enemies, giving them aid and comfort." It might be easily shown that — "the United States" — mean here — as they do everywhere in the constitution — the several States in their confederated character — that treason against them, is treason against their joint sovereignty — and, of course, as much treason against each State, as tconstitution be against any one of them, in its individual and separate character. But I forbear. Enough has already been said to place the question beyond controversy. Having now established that the constitution is federal throughout, in contradistinction to national; and that the several States still retain their sovereignty and independence unimpaired, one would suppose that the conclusion would follow, irresistibly, in the judgment of all, that the government is also federal. But such is not the case. There are those, who admit the constitution to be entirely federal, but insist that the government is partly federal, and partly national. They rest their opinion on the authority of the "Federalist." That celebrated work comes to this conclusion, after explicitly admitting that the constitution was ratified and adopted by the people of the several States, and not by them as individualsconstitution one entire nation — that the act establishing the constitution is, itself, a federal, and not a national act — that it resulted neither from the act of a majority of the people of the Union, nor from a majority of the States; but from the unanimous assent of the several States — differing no otherwise from their ordinary assent than as being given, not by their legislatures, but by the people themselves — that they are parties to it — that each State, in ratifying it, was coconstitutiona sovereign body, independent of all others, and is bound only by its own voluntary act — that, in consequence, the constitution itself is federal and not national — that, if it had been formed by the people as one nation or community, the will of the majority of the whole people of the Union would have bound the minority — that the idea of a national government involves in it, not only authority over individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government — that among the people consolidated into one nation, this supremacy is completely vested in the governmeconstitutionte governments, and all local authorities, are subordinate to it, and may be controlled, directed, or abolished by it at pleasure — and, finally, that the States are regarded, by the constitution, as distinct, independent, and sovereign.
How strange, after all these admission, is the conclusion that the government is partly federal and partly national! It is the constitution which determines theconstitutionf the government. It is impossible to conceive how the constitution can be exclusively federal (as it is admitted, and has been clearly proved to be) and the government partly federal and partly national. It would be just as easy to conceive how a constitution can be exclusively monarchical, and the government partly monarchical, and partly aristocratic or popular; and vice versa. Monarchy is not more strongly distinguished from either, than a federal is from a national government. Indeed, these are even more adverse to each other; for the other forms may be blended in the constitution and the government; while, as has been shown, and as is indirectly admitted by the work referred to, the one of these so econstitutionother, that it is impossible to blend them in the same constitution, and, of course, in the same government. I say, indirectly admitted, for it admits, that a federal government is one to which States are parties, in their distinct, independent, and sovereign character; and that — "the idea of a national government involves in it, not only an authority over individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government" — and, "that it is one, in which all local authorities are subordinate to the supreme, and may be controlled, directed, and abolished by it at pleasure." How, then, is it possible for institutions, admitted to be so utterly repugnant in their nature as to be directly destructive of each other, to be so blended as to form a government partly federal and partly national? What can be more contradictious? This, of itself, is sufficient to destroy the authority of the work on this point — as celebrated as it is — without showing, as might be done, that the admissions it makes throughout, are, in like manner, in direct contradiction to the conclusions, to which it comes.
But, strange as such a conclusion is, after such admissions, it is not more strange than the reasons assigned for it. The first, and leading one — that on which it mainly relies — is drawn from the source whence, as it alleges, the powers of the government are derived. It states, that the House of Representatives will derive its powers from the people of "America;" and adds, by way of confirmation, "The people will be represented in the same proportion, and on the same principle, as they are in the legislatures of each particular State" — and hence concludes that it would be national and not federal. Is the fact so? Does the House of Representatives really derive its powers from the people of America? — that is, from the people in the aggregate, as forming one nation; for such must be the meaning — to give the least force, or even plausibility, to the assertion. Is it not a fundamental principle, and unconstitutionmitted — admitted even by the authors themselves — that all the powers of the government are derived froconstitutiontution — including those of the House of Representatives, as well as others? And does not this celebrated work admit — most explicitly, and in the fullest manner — that the constitution derives allconstitutions and authority from the people of the several States, acting, each for itself, in their independent and sovereign character as States? that they still retain the same character, and, as such, are parties to it? and that it is a federal, and not a national, constitution? How, then, can it assert, in the face of such admissions, that the House of Representatives derives its authority from the American people, in the aggregate, as forming one people or nation? To give color to the assertion, it affirms, that the people will be represented on the same principle, and in the same proportion, as they are in the legislature of each particular State. Are either of these propositions true? On the contrary, is it not universally known and admitted, that they are represented in the legislature of every State of the Union, as mere individuals — and, by election districts, entirely subordinate to the government of the State — while the members of the House of Representatives are elected — be the mode of election what it may — as delegates of the several States, in their distinct, independent, and sovereign character, as members of the Union — and not as delegates from the States, considered as mere election districts? It was on this ground, as has been stated, that President Washington vetoed the act to apportion the members, under the first census, among the several States; and his opinion has, ever since, been acquiesced in.
Neither is it true that the people of each State are represented in the House of Represenconstitutionhe same proportion as in their respective legislatures. On the contrary, they are represented in the former according to one uniform ratio proportion among the several States, fixed by the constitution itself; whileconstitutionte legislature, the ratio, fixed by its separate State constitution, is different in different States — and in scarcely any are they represented in the same proportion in the legislature, as in the House of Representatives. The only point of uniformity in this respect is, that "the electors of the House of Representatives shall have the qualifications requisite for electors of the most numerous branch of the State legislatures;" a rule which favors the federal, and not the national character of the government.
The authors of the work conclude, on the same affirmation — and by a similar course of reasoning — that the executive department of the government is partly national, and partly federal — federal, so far as the number of electors of each State, in the election of President, depends on its Senatorial representation — and so far as the final election (when no choice is made by the electoral college) depends on the House of Representatives — because they vote and count by the States — and national, so far as the number of its electors depends on its representation in the Lower House. As the argument in support of this proposition is the same as that relied on to prove that the House of Representatives is national, I shall pass it by with a single remark. It overlooks the fact that the electors, by an express provision of the constitution, are appointed by the several States; and, of course, derive their powers from them. It would, therefore, seem, according to their course of reasoning, that the executive department, when the election is made by the colleges, ought to be regarded as federal — while, on the other hand, when it is made by the House of Representatives, in the event of a failure on the part of the electors to make a choice, it ought to be regarded as national, and not federal, as they contend. It would, indeed, seem to involve a strange confusion of ideas to make the same department partly federal and partly national, on such a process of reasoning. It indicates a deep and radical error somewhere in the conception of the able authors of the work, in reference to a question the most vital that can arise under our system of government.
The next reason assigned is, that the government will operate on individuals composing the several States, and not on the States themselves. This, however, is very little relied on. It admits that even a confederacy may operate on individuals without losing its character as such — and cites the articles of confederation in illustration; and it might have added, that mere treaties, in some instances, operate in the same way. It is readily conceded that one of the strongest characteristics of a confederacy is, that it usually operates on the states or communities which compose it, in their corporate capacity. When it operates on individuals, it departs, to that extent, from its appropriate sphere. But this is not the case with a federal government — as will be shown when I come to draw the line of distinction between it and a confederacy. The argument, then, might be appropriate to prove that the government is not a confederacy — but not that it is a national government.
It next relies on the amending power to prove that it is partly national and partly federal. It states that — "were it wholly national, the supreme and ultimate authority would reside in a majority of the people of the whole 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 any alteration, that would be binding on all." It is remarkable how often this celebrated work changes its ground, as to what constitutes a national, and what a federal government — and this, too, after defining them in the clearest and most precise manner. It tells us, in this instance, that were the government wholly national — the supreme and ultimate authority would reside in the people of the Union; and, of course, such a government must derive its authority from that source. It tells us, elsewhere, that a federal government is one, to which the States, in their distinct, independent and sovereign character, are parties — and, of course, such a government must derive its authority from them as its source. A government, then, to be partly one, and partly the other, ought, accordingly, to derive its authority partly from the one, and partly from the other; and no government could be so, which did not — and yet we are told, at one time, that the constitution is federal, because it derived its authority, neither from the majority of the people of the Union, nor a majority of the States — implying, of course, that a government, which derived its authority from a majority of the States, would be national; as well as that which derived it from a majority of the people — and, at another, that the election of the President by the House of Representatives would be a federal act — although the House, itself, is national, because it derived its authority from the American people. And now we are told, that the amending power is partly national, because three-fourths of the States, voting as States, constitutionrd to population, can, instead of the whole, amend the constitution; although the vote of a majority of the House of Representatives, taken by States, made the election of the President, to that extent, federal. If we turn from this confusion of ideas, to its own clear conceptions of what makes a federal, and what a national government, nothing is more evident than that the amending power is not derived from, nor exercised under the authority of the people of the Union, regarded in the aggregate — but from the several Statesconstitution original, distinct and sovereign character; and that it is but a modification of the original creating power, by which the constitution was ordained and established — and which required the consent of each State to make it a party to it — and not a negation or inhconstitutionhat power — as has been shown. In support of these views, it endeavors to show, by reasons equally unsatisfactory and inconclusive, that the object of the convention which framed the constitution was, to establish, "a firm national government." To ascertain the powers and objects of the convention, reference ought to be made, one would suppose, to the commissions given to their respective delegates, by the several States, which were represented in it. If that had been done, it would have been found that no State gave the slightest authority to its delegates to form a national government, or made the least allusion to such government as one of its objects. The word, National, is not even used in any one of the commissions. On the contrary, they designate the objects to be, to revise the federal constitution, and to make it adequate to the exigencies of the Union. But, instead of to these, the authors of this work resort to the act of Congress referring the proposition for calling a convention, to the several States, in conformity with the recommendation of the Annapolis convention — which, of itself, could give no authority. And further — even in this reference, they obviously rely, rather on the preamble of the act, than on the resolution adopted bypreambles, submitting the proposition to the State governments. The preamble and resolution are in the following words — "Whereas, there is a provision, in the articles of confederation and perpetual union, for making alterations therein, by the assent of a Congress of the United States and of the legislatures of the several States — and, whereas, experience has evinced that there are defects in the present confederation — as a mean to the remedy of which, several of the States, and particularly the State of New York, by express instruction to their delegates in Congress, have suggested a convention for the purpose expressed in the following resolution, and such convention appearing to be the most probable mean of establishing, in the States, a firm National Government,
Resolved, That, in the opinion of Congress, it is expedient that, on the second Monday of May next, a convention of delegates, who shall have been appointed by the several States, be held in Philadelphia, for the sole and express purpose of revising the articles of confederation; and reporting to Congress and the several legislatures, such alterations and provisions therein as shall render the federal constitution adequate to the exigencies of the government and the preservation of THE UNION."
Now, assuming that the mere opinion of Congress, and not the commissions of the delegates from the several States, ought to determine the object of the convention — is it not manifest, that it is clearly in favor, not of establishing a firm national government, but of simply revising the articles of confederation for the purposes specified? Can any expression be more explicit than the declaration contained in the resolution, that the convention shall be held, "for the sole and express purpose of revising the articles of confederation?" If to this it be added, that the commissions of the delegates of the several States, accord with the resolution, there can be no doubt that the real object of the convention was — (to use the language of the resolution) — "to render the federal constitution adequate to the exigencies of the government aconstitutionrvation of the Union;" and not to establish a national constitution and government in its place — and, that constitution impression of the convention itself, the fact (admitted by the work) that they did establish a federal, and not a national constitution, conclusively proves. How the distinguished and patriotic authors of this celebrated work fell — against their own clear and explicit admissions — into an error so radical and dangerous — one which has contributed, more than all others combined, to cast a mist over our system of government, and to confoundconstitutiontray the minds of the community as to a true conception of its real character, cannot be accounted for, without adverting to their history and opinions as connected with the formation of the constitution. The two principal writers were prominent members of the convention; and leaders, in that body, of the party, which supported the plan for a national government. The other, although not a member, is known to have belonged to the same party. They all acquiesced in the decision, which overruled their favorite plan, and determined, patriotically, to give that adopted by the convention, a fair trial; without, however, surrendering their preference for their own scheme of a national government. It was in this state of mind, which could not fail to exercise a strong influence over their judgments, that they wrote the Federalist: and, on all questions connected with the character of the government, due allowance should be made for the force of the bias, under which their opinions were formed.
From all that has been stated, the inference follows, irresistibly, that the government is a federal, in contradistinction to a national government — a government formed by the States; ordained and established by the States, and for the States — without any participation or agency whatever, on the part of the people, regarded in the aggregate as forming a nation; that it is throughout, in whole, and in every part, simply and purely federal — "the federal government of these States" — as is accurately and concisely expressed by General Washington, the organ of the convention, in his letter laying it before the old Congress — words carefully selected, and with a full and accurate knowledge of their import. There is, indeed, no such community, politically speaking, as the people of the United States, regarded in the light of, and as constituting one people or nation. There never has been any such, in any stage of their existence; and, of course, they neither could, nor ever can exercise any agency — or have any participation, in the formation of our system of government, or its administration. In all its parts — including the federal as well as the separate State governments, it emanated from the same source — the people of the several States. The whole, taken together, form a federal community — a community composed of States united by a political compact — and not a nation composed of individuals united by, what is called, a social compact.
I shall next proceed to show that it is federal, in contradistinction to a confederacy.
It differs and agrees, but in opposite respects, with a national government, and a confederacy. It differs from the former, inasmuch as it has, for its basis, a confederacy, and not a nation; and agrees with it in being a government: while it agrees with the latter, to the extent of having a confederacy for its basis, and differs from it, inasmuch as the powers delegated to it are carried into execution by a government — and not by a mere congress of delegates, as is the case in a confederacy. To be more full and explicit — a federal government, though based on a confederacy, is, to the extent of the powers delegated, as much a government as a national government itself. It possesses, to this extent, all the authorities possessed by the latter, and as fully and perfectly. The case is different with a confederacy; for, although it is sometimes called a government — its Congress, or Council, or the body representing it, by whatever name it may be called, is much more nearly allied to an assembly of diplomatists, convened to deliberate and determine how a league or treaty between their several sovereigns, for certain defined purposes, shall be carried into execution; leaving to the parties themselves, to furnish their quota of means, and to cooperate in carrying out what may have been determined on. Such was the character of the Congress of our confederacy; and such, substantially, was that of similar bodies in all confederated communities, which preceded our present government. Our system is the first that ever substituted a government in lieu of such bodies. This, in fact, constitutes its peculiar characteristic. It is new, peculiar, and unprecedented.
In asserting that such is the difference between our present government and the confederacy, which it superseded, I am supported by the authority of the convention which framed the constitution. It is to be found in the second paragraph of their letter, already cited. After stating the great extent of powers, which it was deemed necessary to delegate to the United States — or as they expressed it — "the general government of the Union" — the paragraph concludes in the following words: "But the impropriety of delegating such extensive trusts to one body of men (the Congress of the confederacy) is evident; and hence results the necessity of a different organization." This "different organization," consisted in substituting a government in place of the Congress of the confederation; and was, in fact, the great and essential change made by the convention. All others were, relatively, of little importance — consisting rather in the modification of its language, and the mode of executing its powers, made necessary by it — than in the powers themselves. The restrictions and limitations imposed on the powers delegated, and on the several States, are much the same in both. The change, though the only essential one, was, of itself, important, viewed in relation to the structure of the system; but it was much more so, when considered in its consequences as necessarily implying and involving others of great magnitude; as I shall next proceed to show.
It involved, in the first place, an important change in the source whence it became necessary to derive the delegated powers, and the authority by which the instrument delegating them should be ratified. Those of the confederacy were derived from the governments of the several States. They delegated them, and ratified the instrument by which they were delegated, through their representatives in Congress assembled, and duly authorized for the purpose. It was, then, their work throughout; and their powers were fully competent to it. They possessed, as a confederate council, the power of making compacts and treaties, and of constituting the necessary agency to superintend their execution. The articles of confederation and union constituted, indeed, a solemn league or compact, entered into for the purposes specified; and Congress was but the joint agent or representative appointed to superintend its execution. But the governments of the several States could go no further, and were wholly deficient in the requisite power to form a constitution and government in their stead. That could only be done by the sovereign power; and that power, according to the fundamental principles of our system, resides, not in the government, but exclusively in the people — who, with us, mean the people of the several States — and hence, the powers delegconstitution government had to be derived from them — and the constitution to be ratified, and ordained and established by them. How this was done has already been fully explained.
It involved, in the next place, an important change in the character of the system. It had previously been, in reality, a league between the governments of the several States; or to express it more fully and accurately, between the States, through the organs of their respective governments; but it became a union, in consequence of being ordained and established between the people of the several States, by themselves, and for themselves, in their character of sovereign and independent communities. It was this important change which (to use the language of the constitutiondia/preamble.html'> -->preamble of the constitution) "formed a more perfect union." It, in fact, perfected it. It could not be extended further, or be made more intimate. To have gone a step beyond, would have been to consolidate the States, and not the Union — and thereby to have destroyed the latter.
It involved another change, growing out of the division of the powers of government, between the United States and the separate States — requiring that those delegated to the former should be carefully enumerated and specified, in order to prevent collision between them and the powers reserved to the several States respectively. There was no necessity for such great caution under the confederacy, as its Congress could exercise little power, except through the States, and with their co-operation. Hence the care, circumspection and precision, with which the grants of powers are made in the one, and the comparatively loose, general, and more indefinite manner in which they are made in the other.
It involved another, intimately connected with the preceding, and of great importance. It entirely changed the relation which the separate governments of the States sustained to the body, which represented them in their confederated character, under the confederacy; for this was essentially different from that which they now sustain to the government of the United States, their present representative. The governments of the States sustained, to the former, the relation of superior to subordinate — of the creator to the creature; while they now sustain, to the latter, the relation of equals and co-ordinates. Both governments — that of the United States and those of the separate States, derive their powers from the same source, and were ordained and established by the same authority — the only difference being, that in ordaining and establishing the one, the people of several States acted with concert or mutual understanding — while, in ordaining and establishing the others, the people of each State acted separately, and without concert or mutual understanding — as has been fully explained. Deriving their respective powers, then, from the same source, and being ordained and established by the same authority — the two governments, State and Federal, must, of necessity, be equal in their respective spheres; and both being ordained and established by the people of the States, respectively — each for itself, and by its own separate authority — the constitution -->constitutionvernment of tconstitutionates must, of necessity, be the constitution and government of each — as much so as its own separate andconstitution -->constitutionution and government; and, therefore, they constitutionin econstitutionn the relation of co-ordinate constitutions and governments. It is on this ground only, that the former is the constitution and government of all the States — not because it is the constitution and government of the whole, considered in the aggregate as constituting one nation, but because it is the constitution and government of each respectively: for to suppose that they are the constitution and government of each, because of the whole, would be to assume, what is not true, that they were ordained and established by the American people in the aggregate, as forming one nation. This would be to reduce the several States to subordinate and local divisions; and to convert their separate constitutions and governments into mere charters and subordinate corporations: when, in truth and fact, they are equals and co-ordinates.
It, finally, involved a great change in the manner of carrying into execution the delegated powers. As a government, it was necessary to clothe it with the attribute of deciding, in the first instance, on the extent of its powers — and of acting on individuals, directly, in carrying them into execution; instead of appealing to the agency of the governments of the States — as was the case with the Congress of the confederacy.
Such are the essential distinctions between a federal government and a confederacy — and such, in part, the important changes necessarily involved, in substituting a government, in the place of the Congress of the confederacy.
It now remains to be shown, that the government is a republic — a republic — or (if the expression be preferred) a constitutional democracy, in contradistinction to an absolute democracy.
It is not an uncommon impression, that the government of the United States is a government based simply on population; that numbers are its only element, and a numerical majority its only controlling power. In brief, that it is an absolute democracy. No opinion can be more erroneous. So far from being true, it is, in all the aspects in which it can be regarded, preeminently a government of the concurrent majority: with an organization, more complex and refined, indeed, but far better calculated to express the sense of the whole (in the only mode by which this can be fully and truly done — to wit, by ascertaining the sense of all its parts) than any government ever formed, ancient or modern. Instead of population, mere numbers, being the sole element, the numerical majority is, strictly speaking, excluded, even as one of its elements; as I shall proceed to establish, by an appeal to figures; beginning with the formation of the constitution, regarded as the fundamental law which ordained and established the government; and closing with the organization of the government itself, regarded as the agent or trustee to carry its powers into effect.
I shall pass by the Annapolisconstitution on whose application, the convention which framed the constitution, was called; because it was a partial and informal meeting of delegates from a few States; and commence with the Congress of the confederation, by whom it was authoritatively called. That Congress derived its authority from the articles of confederation; and these, from the unanimous agreement of all the States — and not from the numerical majority, either of the several States, or of their population. It voted, as has been stated, by delegations; each counting one. A majority of each delegation, with a few important exceptions, decided the vote of its respective State. Each State, without regard to population, had thus an equal vote. The confederacy consisted of thirteen States; and, of course, it was in the power constitution of the smallest, as well as the largest, to defeat the call of the convention; and, by consequence, the formation of the constitution.
By the first census, taken in 1790 — three years after the call — the population of the United States amounted to 3,394,563, estimated in federal numbers. Assuming this to have been the whole amount of its population at the time of the call (which can cause no material error) the population of the seven smallest States was 959,801; or less than one third of the whole: so that, less than one-third of the population could have defeated the call of the convention.
The convention voted, in like manner, by States; and it required the votes of a majority of the delegations present, to adopt the measure. There were twelve States represented &mdaconstitutionland being absent — so that the votes of seven delegations were required; and, of course, less than one-third of the population of the whole, could have defeated the formation of the constitution.
The plan, when adopted by the convention, had again to be submitted to Congress — and to receive its sanction, before it could be submitted to the several States for their approval — a necessary preliminary to its final reference to the conventions of the people of the several States for their ratification. It had thus, of course, to pass again the ordeal of Congress; when the delegations of seven of the smallest States, representing less than one-third of the population, could again have defeated, by refusing to submit it for their consideration. And, stronger still — when submitted, it required, by an express provision, the concurrence of nine of the thirteen, to establish it, between the States ratifying it; which put it in the power of any four States, the smallest as well as the largest, to reject it. The four smallest, to wit: Delaware, Rhode Island, Georgia, and New Hampshire, contained, by the census of 1790, a federal population of only 336,948 — but a little more than one-eleventh of the whole: but, as inconsiderable as was their population, they could have defeated it, by preventing its ratificaticonstitutions appears, that the numerical majority of the population, had no agency whatever in the process of forming and adopting the constitution; and that neither this, nor a majority of the States, constituted an element in its ratification and adoption.
In the provision for its amendment, it prescribes, as has been stated, two modes — one, by two-thirds of both houses of Congress; and the other, by a convention of delegates from the States, called by Congress, onconstitutioncation of two-thirds of their respective legislatures. But, in neither case can the proposed amendment become a part of the constitution, unless ratified by the legislatures of three-fourths of the States, or by conventions of the people of three-fourths — as Congress may prescribe; soconstitutionthe one, it requires the consent of two-thirds of the States to propose amendments — and, in botconstitutionthree-fourths to adopt and ratify them, before they can become a part of the constitution. As there are, at present, thirty States in the Union, it will take twenty to propose, and, of course, would require but eleven to defeat, a proposition to amend the constitution; or, nineteen votes in the Senate — if it should originate in Congress — and the votes of eleven legislatures, if it should be to call a convention. By the census of 1840, the federal population of all the States — including the three, which were then territories, but which have since become States — was 16,077,604. To this add Texas, constitutioned, say 110,000 — making the aggregate, 16,187,604. Of this amount, the eleven smallest States (Vermont being the largest of the number) contained a federal population of but 1,638,521: and yet they can prevent the other nineteen States, with a federal population of 14,549,082, from even proposing aconstitutionto the constitution: while the twenty smallest (of which Maine is the largest) with a federal population of 3,526,811, can compel Congress to call a convention to propose amendments, against the united votes of the other ten, with a federal population of 12,660,793. Thus, while less than one-eighth of the population, may, in the one case, prevent the adoption of a proposition to amend the constitution — less than one-fourth can, in the other, adopt it.
But, striking as are these results, the process, when examined with reference to the ratification of proposals to amend, will present others still more so. Here the consent of three-fourths of the States is required; which, with the present number, would make the concurrence of twenty-three States necessary to give effect to the act of ratification; and, of course, puts it in the power of any eight States to defeat a proposal to amend. The federal population of the econstitutiont is but 776,969; and yet, small as this is, they can prevent amendments, againstconstitutionvotes of the other twenty-two, with a federal population of 15,410,635; or nearly twenty times their number. But while so small a portion of the entire population can prevent an amendment, twenty-three of the smallest States — with a federal population of only 7,254,400 — can amend the constitutioconstitutionhe united votes of the other seven, with a federal population of 8,933,204. So that a numerical minority of the population can amend the constitution, against a decided numerical majority; when, at the same time, one-nineteenth of the population can prevent the other eighteen-nineteenths from amending it. And more than this: any one State — Delaware, for instance, with a federal population of only 77,043 — can prevent the other twenty-nine States, with a federal population of 16,110,561, from so amending the constitution as to deprive the States of an equality of representation in the Senate. To complete the picture: Sixteen of the smallest States — that is, a majority of them, with a population of only 3,411,672 — a little more than one-fifth of the whole — can, in effect, destroy the government and dissolve the Union, by simply declining to appoint Senators; against the united voice of the other fourteen States, with a population of 12,775,932 — being but little less than four-fifths of the whole.
These results, resting on calculations, which exclude doubt, incontestably prove — not only that the authority which formed, ratified, and even amended the constitution, regulates entirely the numerical majority, as one of its elements — but furnish additional and conclusive proof, if additional were needed, that ours is a federal government — a government made by the several States; and that States, and not individuals, are its constituents. The States, throughout, in forming, ratifying and amending the constitution, act as equals, without reference to population.
Regarding the Government, apart from the Constitution, and simply as the trustee or agent to carry its powers into execution, the case is somewhat different. It is composed of two elements: One, the States, regarded in their corporate character — and the other, their representative population — estimated in, what is called, "federal numbers" — which is ascertained, "by adding to the whole number of free persons, including those bound to service for a term of years — and excluding Indians not taxed — three-fifths of all others." These elements, in different proportions, enter into, and constitute all the departments of the government; as will be made apparent by a brief sketch of its organization.
The government is divided into three separate departments, the legislative, the executive, and the judicial. The legislative consists of two bodies — the Senate, and the House of Representatives. The two are called the Congress of the United States: and all the legislative powers delegated to the government, are vested in it. The Senate is composed of two members from each State, elected by the legislature thereof, for the term of six years; and the whole number is divided into three classes; of which one goes out at the expiration of every two years. It is the representative of the States, in their corporate character. The members vote per capita, and a majority decides all questions of a legislative character. It has equal power with the House, on all such questions — except that it cannot originate "bills for raising revenue." In addition to its legislative powers, it participates in the powers of the other two departments. Its advice and consent are necessary to make treaties and appointments; and it constitutes the high tribunal, before which impeachments are tried. In advising and consenting to treaties, and in trials of impeachments, two-thirds are necessary to decide. In case the electoral college fails to choose a Vice-President, the power devolves on the Senate to make the selection from the two candidates having the highest number of votes. In selecting, the members vote by States, and a majority of the States decide. In such cases, two-thirds of the whole number of Senators are necessary to form a quorum.
The House of Representatives is composed of members elected by the people of the several States, for the term of two years. The right of voting for them, in each State, is confined to those who are qualified to vote for the members of the most numerous branch of its own legislature. The number of members is fixed by law, under each census — which is taken every ten years. They are apportioned among the several States, according to their population, estimated in federal numbers; but each State is entitled to have one. The House, in addition to its legislative powers, has the sole power of impeachment; as well as of choosing the President (in case of a failure to elect by the electoral college) from the three candidates, having the greatest number of votes. The members, in such case, vote by States — the vote of each delegation, if not equally divided, counts one, and a majority decides. In all other cases they vote per capita, and the majority decides; except only on a proposition to amend the constitution.
The executive powers are vested in the President of United States. He and the Vice-President, are chosen for the term of four years, by electors, appointed in such manner as the several States may direct. Each State is entitled to a number, equal to the whole number of its Senators and Representatives for the time. The electors vote per capita, in their respective States, on the same day throughout the Union; and a majority of the votes of all the electors is requisite to a choice. In case of a failure to elect, either in reference to the President or Vice-President, the House or the Senate, as the case may be, make the choice, in the manner before stated. If the House fail to choose before the fourth day of March next ensuing — or in case of the removal from office, death, resignation, or inability of the President — the Vice-President acts as President. In addition to the ordinary executive powers, the President has the authority to make treaties and appointments, by, and with the advice and consent of the Senate; and to approve or disapprove all bills before they become laws; as well as all orders, resolutions or votes, to which the concurrence of both houses of Congress is necessary — except on questions of adjournment — before they can take effect. In case of his disapproval, the votes of two-thirds of both houses are necessary to pass them. He is allowed ten days (Sundays not counted) to approve or disapprove; and if he fail to act within that period, the bill, order, resolution or vote (as the case may be) becomes as valid, to all intents and purposes, as if he had signed it; unless Congress, by its adjournment, prevent its return.
The judicial power is vested in one Supreme Court, and such inferior courts, as Congress may establish. The Judges of both are appointed by the President in the manner above stated; and hold their office during good behavior.
The President, Vice-President, Judges, and all the civil officers, are liable to be impeached for treason, bribery, and other high crimes and misdemeanors.
From this brief sketch, it is apparent that the States, regarded in their corporate character, and the population of the States, estimated in federal numbers, are the two elements, of which the government is exclusively composed; and that they enter, in different proportions, into the formation of all its departments. In the legislative they enter in equal proportions, and in their most distinct and simple form. Each, in that department, has its appropriate organ; and each acts by its respective majorities — as far as legislation is concerned. No bill, resolution, order, or vote, partaking of the nature of a law, can be adopted without their concurring assent: so that each house has a veto on the other, in all matters of legislation. In the executive they are differently blended. The powers of this department are vested in a single functionary; which made it impossible to give to them separate organs, and concurrent action. In lieu of this, the two elements are blended in the constitution of the college of electors, which chooses the President: but as this gave a decided preponderance to the element of population — because of the greater number of which it was composed — in order to combat and to compensate this advantage — and to preserve, as far as possible, the equipoise between the two, the power was vested in the House, voting by States, to choose him from the three candidates, having the largest number of votes, in case of a failure of choice by the college; and in case of a failure to select by the House, or of removal, death, resignation, or inability, the Vice-President was authorized to act as President. These provisions gave a preponderance, even more decided, to the other elconstitutione eventual choice. This was still more striking as the constitution stood at its adoption. It originally provided that each elector should vote for two candidates, without designating which should be the President, or which the Vice-President; the person having the highest number of votes to be the President, if it should be a majority of the whole number given. If there should be more than one having such majority — and an equal number of votes — the House, voting by States, should choose between them, which should be President — but if none should have a majority, the House, voting in the same way, should choose the President from the five having the greatest number of votes; the person having the greatest number of votes, after the choice of the President, to be the Vice-President. But in case of two or more having an equal number, the Senate should elect from among them the Vice-President.
Had these provisions been left unaltered, and not superseded, in practice, by caucuses and party conventions, their effect would have been to give to the majority of the people of the several States, the right of nominating five candidates; and to the majority of the States, acting in their corporate character, the right of choosing from them, which should be President, and which Vice-President. The President and Vice-President would, virtually, have been elected by the concurrent majority of the several States, and of their population, estimated in federal numbers; and, in this important respect, the executive would have been assimilated to the legislative department. But the Senate, in addition to its legislative, is vested also with supervisory powers in respect to treaties and appointments, which give it a participation in executive powers, to that extent; and a corresponding weight in the exercise of two of its most important funcconstitutionreaty-making power is, in reality, a branch of the law-making power; and we accordingly find that treaties as well as the constitution itself, and the acts of Congress, are declared to be the supreme law of the land. This important branch of the law-making power includes all questions between the United States and foreign nations, which may become the subjects of negotiation and treaty; while the appointing power is intimately connected with the performance of all its functions.
In the Judiciary the two elements are blended, in proportions different from either of the others. The President, in the election of whom they are both united, nominates the judges; and the Senate, which consists exclusively of one of the elements, confirms or rejects: so that they are, to a certain extent, concurrent in this department; though the States, considered in their corporate capacity, may be said to be its predominant element.
In the impeaching power, by which it was intended to make the executive and judiciary responsible, the two elements exist and act separately, as in the legislative department — the one, constituting the impeaching power, resides in the House of Representatives; and the other, the power that tries and pronounces judgment, in the Senate: and thus, although existing separately in their respective bodies, their joint and concurrent action is necessary to give effect to the power.
It thus appears, onconstitutionhe whole, that it was the object of the framers of the constitution, in organizing the government, to give to the two elements, of which it is composed, separate, but concurrent action; and, consequently, a veto on each other, whenever the organization of the department, or the nature of the power would admit: and when this could not be done, so to blend the tconstitutionke as near an approach to it, in effect, as possible. It is, also, apparent, that the government, regarded apart from the constitution, is the government of the concurrent, and not of the numerical majority. But to have an accurate conception how it is calculated to act in practice; and to establish, beyond doubt, that it was neither intended to be, nor is, in fact, the government of the numerical majority, it will be necessary again to appeal to figures.
That, in organizing a government with different departconstitutionch of which the States are represented in a twofold aspect, in the manner stated, it was the object of the framers of the constitution, to make it more, instead of less popular than it would have been as a government of the mere numerical majority — that is, as requiring a more numerous, instead of a less numerous constituency to carry its powers into execution — may be inferred from the fact, that such actually is the effect. Indeed, the necessary effect of the concurrent majority is, to make the government more popular — that is, to require more wills to put it in action, than if any one of the majorities, of which it is composed, were its sole element — as will be apparent by reference to figures.
If the House, which represents population, estimated in federal numbers, had been invested with the sole power of legislation, then six of the larger States, to wit, New York, Pennsylvania, Virginia, Ohio, Massachusetts and Tennessee, with a federal population of 8,216,279, would have had the power of making laws for the other twenty-four, with a federal population of 7,971,325. On the other hand, if the Senate had been invested with the sole power, sixteen of the smallestconstitutionsh; embracing Maryland as the largest — with a federal population of 3,411,672, would have had the power of legislating for the other fourteen, with a population of 12,775,932. But the constitution, in giving each body a negative on the other, in all matters of legislation, makes it necessary that a majority of each should concur to pass a bill, before it becomes an act; and the smallest number of States and population, by which this can be effected, is six of the larger voting for it in the House of Representatives — and ten of the smaller, uniting with them in their vote, in the Senate. The ten smaller, including New Hampshire as the largest, have a federal population of 1,346,575; which, added to that of the six larger, would make 9,572,852. So that no bill can become a law, with less than the united vote of sixteen States, representing a constituency containing a federal population of 9,572,852, against fourteen States, representing a like population of 6,614,752.
But, when passed, the bill is subject to the President's approval or disapproval. If he disapprove, or, as it is usually termed, vetoes it, it cannot become a law unless passed by two-thirds of the members of both bodies. The House of Representatives consists of 228 — two-thirds of which is 152 — which, therefore, is the smallest number that can overcome his veto. It would take ten of the larger States, of which Georgia is the smallest, to make up that number — the federal population of which is 10,853,175: and, in the Senate, it would require the votes of twenty States to overrule it — and, of course, ten of the larger united with ten of the smaller. But the ten smaller States have a federal population of only 1,346,575 — as has been stated — which added to that of the ten larger, would give 12,199,748, as the smallest population by which hiconstitutione overruled, and the act become a law. Even then, it is liable to be pronounced unconstitutional by the judges, should it, in any casconstitutionm, come in conflict with their views of the constitution — a decision which, in respect to individuals, operates as an absolute veto, which can only be overruled by an amendment of the constitution. In all these calculations, I assume a full House, and full votes — and that members vote according to the will of their constituents.
If the election of the President, by the electoral college, be compared with the passage of a bill by Congress, it will be found that it requires a smaller federal number to elect, than to pass a bill — resulting from the fact that the two majorities, in the one case, are united and blended together, instead of acting concurrently, as in the other. There are, at present, 288 members of Congress, of which 60 are Senators, and the others, members of the House of Representatives; and, as each State is entitled to appoint as many electors as it has members of Congress, there is, of course, the same number of electors. One hundred and forty-five constitute a majority of the whole; and, of course, are necessary to a choice. Seven of the States of the largest class, say, New York, Pennsylvania, Virginia, Ohio, Tennessee, Kentucky and Indiana, combined with one of a medium size, say, New Hampshire, are entitled to that number — and, with a federal population of 9,125,936, may overrule the vote of the other twenty-two, with a population of 7,061,668: so that a small minority of States, with not a large majority of population, can elect a President by the electoral college — against a very large majority of the States, with a population not greatly under a majority. It follows, therefore, that the choice of a President, when made by the electoral college, may be less popular in its character than when made by Congress — which cannot elect without a concurrence of a federal population of upwards of nine and a half millions. But to compensate this great preponderance of the majority based on population, over that based on the States, regarded in their corporate character, in an election by the college of electors, the provision giving to the House of Representatives, voting by States, the eventual choice, in case the college fail to elect, was adopted. Under its operation, sixteen of the smallest States, with a federal population of 3,411,672, may elect the President, against the remaining fourteen, with a federal population of 12,775,932 — which gives a preponderance equally great to the States, without reference to population, in the contingency mentioned.
From what has been stated, the conclusion follows, irresistibly, that the constitution and the government, regarding the latter apart from the former, rest, throughout, on the principle of the concurrent majority; and that it is, of course, a Republic — a constitutional democracy, in contradistinction to an absolute democracy; and that, the theory which regards it as a government of the mere numerical majority, constitutionross and groundless misconception. So far is this from being the case, the numerical majority was entirely excluded as an element, throughout the whole process of forming and ratifying the constitution: and, although admitted as one of the two elements, in the organization of the government, it was with the important qualification, that it should be the numerical majority of the population of the several States, regarded in their corporate character, and not of the whole Union, regarded as one community. And further than this — it was to be the numerical majority, not of their entire population, but of their federal population; which, as has been shown, is estimated artificially — by excluding two-fifths of a large portion of the population of many of the States of the Union. Even with these important qualifications, it was admitted as the less prominent of the two. With the exception of the impeaching power, it has no direct participation in the functions of any department of the governmconstitutionthe legislative; while the other element participates in some of the most important functions of the executive; and, in the constitution of the Senate, as a court to try impeachments, in the highest of the judicial functions. It was, in fact, admitted, not because it waconstitutioncal majority, nor on the ground, that, as such, it ought, of right, to constitute one of its elements — much less the only one — but for a very different reason. In the federal constitution, the equality of the States, without regard to population, size, wealth, institutions, or any other consideration, is a fundamental principle; as much so as is the equality of their citizens, in the governments of the several States, without regard to property, influence, or superiority of any description. As, in the one, the citizens form the constituent body — so, in the other, the States. But the latter, in forming a government for their mutual protection and welfare, deemed it proper, as a matter of fairness and sound policy, and not of right, to assign to it an increased weight, bearing some reasonable proportion to the different amount of means which the several States might, respectively, contribute to the accomplishment of the ends, for which they were about to enter into a federal union. For this purpose they admitted, what is called federal numbers, as one of the elements of the government about to be established; while they were, at the same time, so jealous of the effects of admitting it, with all its restrictions — that, in order to guard effectually the other element, they provided that no State, without its consent, should be deprived of its equal suffrage in the Senate; so as to place their equality, in that important body, beyond the reach even of the amending power.
I have now established, as proposed at the outset, that the government of the United States is a democratic federal Republic — democratic in contradistinction to aristocratic, and monarchical — federal, in contradistinction to national, on the one hand — and to a confederacy, on the other; and a Republic — a government of the concurrent majority, in contradistinction to an absolute democracy — or a government of the numerical majority.
But the government of the United States, with all its complication and refinement of organization, is but a part of a system of governments. It is the representative and organ of the States, only to the extent of the powers delegated to it. Beyond this, each State has its own separate government, which is its exclusive representative and organ, as to all the other powers of government — or, as they are usually called, the reserved powers. However correct, then, our conception of the character of the government of the United States viewed by itself, may be, it must be very imperfect, unless viewed at the same time, in connection with the complicated system, of which it forms but a part. In order to present this more perfect view, it will be essential, first, to present the outlines of the entire system, so far as it may be necessary to show the nature and character of the relation between the two — the government of the United States and the separate State governments. For this purpose, it will be expedient to trace, historically, the origin and formation of the system itself, of which they constitute the parts.
I have already shown, that the present government of the United States was reared on the foundation of the articles of confederation and perpetual union; that these last did but little more than define the powers and the extent of the government and the union, which had grown out of the exigencies of the revolution; and that these, again, had but enlarged and strengthened the powers and the union which the exigencies of a common defence against the aggression of the parent country, had forced the colonies to assume and form. What I now propose is, to trace briefly downwards, from the beginning, the causes and circumstances which led to the formation, in all its parts, of our present peculiar, complicated, and remarkable system of governments. This may be readily done — for we have the advantage (possessed by few people, who, in past times, have formed and flourished under remarkable political institutions) of historical accounts, so full and accurate, of the origin, rise, and formation of our institutions, throughout all their stages — as to leave nothing relating to either, to vague and uncertain conjecture.
It is known to all, in any degree familiar with our history, that the region embraced by the original States of the Union appertained to the crown of Great Britain, at the time of its colonization; and that different portions of it were granted to certain companies or individuals, for the purpose of settlement and colonization. It is also known, that the thirteen colonies, which afterwards declared their independence, were established under charters which, while they left the sovereignty in the crown, and reserved the general power of supervision to the parent country, secured to the several colonies popular representation in their respective governments, or in one branch, at least, of their legislatures — with the general rights of British subjects. Although the colonies had no political connection with each other, except as dependent provinces of the same crown — they were closely bound together by the ties of a common origin, identity of language, similarity of religion, laws, customs, manners, commercial and social intercourse — and by a sense of common danger — exposed, as they were, to the incursions of a savage foe, acting under the influence of a powerful and hostile nation.
In this embryo state of our political existence, are to be found all the elements which subsequently led to the formation of our peculiar system of governments. The revolution, as it is called, produced no other changes than those which were necessarily caused by the declaration of independence. These were, indeed, very important. Its first and necessary effect was, to cut the cord which had bound the colonies to the parent country — to extinguish all the authority of the latter — and, by consequence, to convert them into thirteen independent and sovereign States. I say, "independent and sovereign," because, as the colonies were, politically and in respect to each other, wholly independent — the sovereignty of each, regarded as distinct and separate communities, being vested in the British crown — the necessary effect of severing the tie which bound them to it was, to devolve the sovereignty on each respectively, and, thereby, to convert them from dependent colonies, into independent and sovereign States. Thus, the region occupied by them, came to be divided into as many States as there were colonies, each independent of the others — as they were expressly declared to be; and only united to the extent necessary to defend their independence, and meet the exigencies of the occasion — and hence that great and, I might say, providential territorial division of the country, into independent and sovereign States, on which our entire system of government rests.
Its next effect was, to transfer the sovereignty which had, heretofore, resided in the British crown, not to the governments of, but to the people composing the several States. It could only devolve on them. The declaration of independence, by extinguishing the British authority in the several colonies, necessarily destroyed every department of their governments, except such as derived their authority from, and represented their respective people. Nothing, then, remained of their several governments, but the popular and representative branches of them. But a representative government, even when entire, cannot possibly be the seat of sovereignty — the supreme and ultimate power of a State. The very term, "representative," implies a superior in the individual or body represented. Fortunately for us, the people of the several colonies constituted, not a mere mass of individuals, without any organic arrangements to express their sovereign will, or carry it into effect. On the contrary, they constituted organized communities — in the full possession and constant exercise of the right of suffrage, under their colonial governments. Had they constituted a mere mass of individuals — without organization, and unaccustomed to the exercise of the right of suffrage, it would have been impossible to have prevented those internal convulsions, which almost ever attend the change of the seat of sovereignty — and which so frequently render the change rather a curse than a blessing. But in their situation, and under its circumstances, the change was made without the least convulsion, or the slightest disturbance. The mere will of the sovereign communities, aided by the remaining fragments — the popular branches of their several colonial governments, speedily ordained and established governments, each for itself; and thus passed, without anarchy — without a shock, from their dependent condition under the colonial governments, to that of independence under those established by their own authority.
Thus commenced the division between the constitution-making and the law-making powers — between the power which ordains and establishes the fundamental laws — which creates, organizes and invests government with its authority, and subjects it to restrictions — and the power that passes acts to carry into execution, the powers thus delegated to government. The one, emanating from the people, as forming a sovereign community, creates the government — the other, as a representative appointed to execute its powers, enacts laws to regulate and control the conduct of the people, regarded as individuals. This division between the two powers — thus necessarily incident to the separation from the parent country — constitutes an element in our political system as essential to its formation, as the great and primary territorial division of independent and sovereign States. Between them, it was our good fortune never to have been left, for a moment, in doubt, as to where the sovereign authority was to be found; or how, and by whom it should be exercised: and, hence, the facility, the promptitude and safety, with which we passed from one state to the other, as far as internal causes were concerned. Our only difficulty and danger lay in the effort to resist the immense power of the parent country.
The governments of the several States were thus rightfully and regularly constituted. They, in the course of a few years, by entering into articles of confederation and perpetual union, established and made more perfect the union which had been informally constituted, in consequence of the exigencies growing out of the contest with a powerful enemy. But experience soon proved that the confederacy was wholly inadequate to effect the objects for which it was formed. It was then, and not until then, that the causes which had their origin in our embryo state, and which had, thus far, led to such happy results, fully developed themselves. The failure of the confederacy was so glaring, as to make it appear to all, that something must be done to meet the exigencies of the occasion — and the great question which presented itself to all was — what should, or could be done?
To dissolve the Union was too abhorrent to be named. In addition to the causes which had connected them by such strong cords of affection while colonies, there were superadded others, still more powerful — resulting from the common dangers to which they had been exposed, and the common glory they had acquired, in passing successfully through the war of the revolution. Besides, all saw that the hope of reaping the rich rewards of their successful resistance to the encroachment of the parent country, depended on preserving the Union.
But, if disunion was out of the question, consolidation was not less repugnant to their feelings and opinions. The attachments of all to their respective States and institutions, were strong, and of long standing — since they were identified with their respective colonies; and, for the most part, had survived the separation from the parent country. Nor were they unaware of the danger to their liberty and property, to be apprehended from a surrender of their sovereignty and existence, as separate and independent States, and a consolidation of the whole into one nation. They regarded disunion and consolidation as equally dangerous; and were, therefore, equally opposed to both.
To change the form of government to an aristocracy or monarchy, was not to be thought of. The deepest feelings of the common heart were in opposition to them, and in favor of popular government.
These changes or alterations being out of the question, what other remained to be considered? Men of the greatest talents and experience were at a loss for an answer. To meet the exigencies of the occasion, a convention of the States was called. When it met, the only alternative, in the opinion of the larger portion of its most distinguished members, was, the establishment of a national government; which was but another name, in reality, for consolidation. But where wisdom and experience proved incompetent to provide a remedy, the necessity of doing something, combined with the force of those causes, which had thus far shaped our destiny, carried us successfully through the perilous juncture. In the hour of trial, we realized the precious advantages we possessed in the two great and prime elements that distinguish our system of governments — the division of the country, territorially, into independent and sovereign States — and the division of the powers of government into constitution- and law-making, powers. Of the materials which they jointly furnished, the convention was enabled to construct the present system — the only alternative left, by which we could escape the dire consequences attendant on the others; and which has so long preserved peace among ourselves, and protected us against danger from abroad. Each contributed essential aid towards the accomplishment of this great work.
To the former, we owe the mode of constituting the convention — as well as that of voting, in the formation and adoption of the constitution — and, finally, in the ratification of it by the States: and to them, joiconstitution exclusively indebted for that peculiar form which the constitution and government finally assumed. It is impossible to read the proceedings of the convention, without pconstitutionat, if the delegates had been appointed by the people at large, and in proportion to population, nothing like the present constitution could have been adopted. It would have assumed the form best suited to the views and interests of the more populous and wealthy portions; and, for that purpose, been made paramount to the existing State governments: in brief, a consolidated, national goverconstitution have been formed. But as the convention was composed of delegates from separate independent and sovereign States, it involved the necessity of voting by States, in framing and adopting the constitution; and — what is of far more importance — the necessity of submitting it to the States for their respective ratifications; so that each should be bound by its own act, and not by that of a majority of the States, nor of their united population. It was this necessity of obtaining the consent of a majority of the States in convention, as, also, in the intermediate process — and, finally, the unanimous approval of all, in order to make it obligatory on all, which rendered it indispensable for the convention to consult the feelings and interests of all. This, united with the absolute necessity of doing something, in order to avert impending calamities of the most fearful character, impressed all with feelings of moderation, forbearance, mutual respect, concession, and compromise, as indispensable to secure the adoption of some measure of security. It was the prevalence of these impressions, that stamped their work with so much fairness, equity, and justice — as to receive, finally, the unanimous ratification of the States; and which has caused it to continue ever since, the object of the admiration and attachment of the reflecting and patriotic.
But the moderation, forbearance, mutual respect, concession, and comprconstitutioninduced by the causes referred to, could, of themselves, have effected nothing, without the aid of the division between the constitution- and the law-making powers. Feebleness and a tendency to disorder are inherent in confederacies; and cannot be remedied, simply by the employment or modification of their powers. But as governments, according to our conceptions, cannot ordain and establish constitutions — and as those of the States had already gone as far as they rightfully couldconstitution and adopting the articles of confederation and perpetual union, it would have been impossible to have called the present constitution and governmenconstitution, without invoking the high creating power, which ordained and established those of the several States. There was none other competent to the task. It was, therefore, invoked; and formed a constitution and government for the United States, as it had formed and modelled those of the several States. The first step was — the division of the powers of government — which was effected, by leaving subject to the exclusive control of the several States in their separate and individual character, all powers which, it was believed, they could advantageously exercise for themselves respectively — without incurring the hazard of bringing them in conflict with each other — and by delegating, specifically, others to the United States, in the manner explained. It is this division of the powers of the government into such as are delegated, specifically, to the common and joint government of all the States — to be exercised for the benefit and safety of each and all — and the reservation of all others to the States respectively — to be exercised through the separate government of each, which makes ours, a system of governments, as has been stated.
It is obvious, from this sketch, brief as it is — taken in connection with what has been previously established — that the two governments, General and State, stand to each other, in the first place, in the relation of parts to the whole; not, indeed, in reference to their organization or functions — for in this respect both are perfect — but in reference to their powers. As they divide between them the delegated powers appertaining to government — and as, of course, each is divested of what the other possesses — it necessarily requires the two united to constitute one entire government. That they are both paramount and supreme within the sphere of their respective powers — that they stand, within these limits, as equals — and sustain the relation of co-ordinate governments, has already been fully established. As co-ordinates, they sustain to each other the same relation which subsists between the different departments of the government — the executive, the legislative, and the judicial — and for the same reason. These are coordinates; because each, in the sphere of its powers, is equal to, and independent of the others; and because the three united make the government. The only difference is that, in the illustration, each department, by itself, is not a government — since it takes the whole in connection to form one; while the governments of the several States respectively, and that of the United States, although perfect governments in themselves, and in their respective spheres, require to be united in order to constitute one entire government. They, in this respect, stand as principal and supplemental — while the co-departments of each stand in the relation of parts to the whole. The opposite theory, which would make the constitution and government of the United States the government of the whole — and the government of each, because the government of the whole — and not that of all, because of each — besides the objection already stated, would involve the absurdity of each State having only half a constitution, and half a government; and this, too, while possessed of the supreme sovereign power. Taking all the parts together, the people of thirty independent and sovereign States, confederated by a solemn constitutional compact into one great federal community, with a system of government, in all of which, powers are separated into the great primary divisions of the constitution-making and the Jaw-making powers; those of the latter class being divided between the common and joint government of all the States, and the separate and local governments of each State respectively — and, finally, the powers of both distributed among three separate and independent departments, legislative, executive, and judicial — presents, in the whole, a political system as remarkable for its grandeur as it is for its novelty and refinement of organization. For the structure of such a system — so wise, just, and beneficent — we are far more indebted to a superintending Providence, that so disposed events as to lead, as if by an invisible hand, to its formation, than to those who erected it. Intelligent, experienced, and patriotic as they were, they were but builders under its superintending direction.
Having shown in what relation the government of the United States and those of the separate States stand to each other, I shall next proceed to trace the line which divides their respective powers; or, to express it in constitutional language — which distinguishes between the powers delegated to the United States, and those reserved to the States respectively — with the restrictions imposed on each. In doing this, I propose to group the former under general heads, accompanied by such remarks as may be deemed necessary, in reference to the object in view.
In deciding what powers ought, and what ought not to be granted, the leading principle undoubtedly was, to delegate those only which could be more safely, or effectually, or beneficially exercised for the common good of all the States, by the joint or general government of all, than by the separate government of each State; leaving all others to the several States respectively. The object was, not to supersede the separate governments of the States — but to establish a joint supplemental government; in order to do that, which either could not be done at all, or as safely and well done by them, as by a joint government of all. This leading principle embraced two great divisions of power, which may be said to comprehend all, or nearly all the delegated powers; either directly, or as a means to carry them into execution. One of them embraces all the powers appertaining to the relations of the States with the rest of the world, called their foreign relations; and the other, of an internal character, embraces such as appertain to the exterior relations of the States with each other. It is clear that both come within the leading principle; as each is of a description which the States, in their separate character, are either incompetent to exercise at all, or if competent, to exercise consistently with their mutual peace, safety, and prosperity. Indeed, so strong and universal has this opinion been, in reference to the powers appertaining to their foreign relations, that, from the Declaration of Independence to the present time, in all the changes through which they have passed, the Union has had exclusive charge of this great division of powers. To the rest of the world, the States composing this Union are now, and ever have been known in no other than their united, confederated character. Abroad — to the rest of the world — they are but one. It is only at home, in their interior relations, that they are many; and it is to this twofold aspect that their motto, "E pluribus unum," appropriately and emphatically applies. So imperious was the necessity of union, and a common government to take charge of their foreign relations, that it may be safely affirmed, not only that it led to their formation, but that, without it, the States never would have been united. The same necessity still continues to be one of the strongest bonds of their union. But, strong as was, and still is, the inducement to union, in order to preserve their mutual peace and safety within, it was not, of itself, sufficiently strong to unite the parts composing this vast federal fabric; nor, probably, is it, of itself, sufficiently strong to hold them together.
This great division of authority appertains to the treaty-making power; and is vested in the President and Senate. The power of negotiating treaties belongs exclusively to the former; but he cannot make them without the advice and consent of the latter. When made, they are declared to be the supreme law of the land. The reason for vesting this branch of the lawmaking power exclusively in the President and Senate, to the exclusion of the House of Representatives, is to be traced to the necessity of secrecy in conducting negotiations and making treaties — as they often involve considerations calculated to have great weight — but which cannot be disclosed without hazarding their success. Hence the objection to so numerous a body as the House of Representatives participating in the exercise of the power. But to guard against the dangers which might result from confiding the power to so small a body, the advice and consent of two-thirds of the Senators present was required.
There is a very striking difference between the manner in which the treaty-making and the law-making power, in its strict sense, are delegated, which deserves notice. The former is vested in the President and Senate by a few general words, without enumerating or specifying, particularly, the power delegated. The constitution simply provides that, "he shall have power, by and with the advice and consent of the Senate, to make treaties; provided two-thirds of the Senators present concur" — while the legislative powers vested in Congress, are, one by one, carefully enumerated and specified. The reason is to be found in the fact, that the treaty-making power is vested, exclusively, in the government of the United States; and, therefore, nothing more was necessary in delegating it, than to specify, as is done, the portion or department of the government in which it is vested. It was, then, not only unnecessary, but it would have been absurd to enumerate, specially, the powers embraced in the grant. Very different is the case in regard to legislative powers. They are divided between the Federal government and the State governments; which made it absolutely necessary, in order to draw the line between the delegated and reserved powers, that the one or the other should be carefully enumerated and specified; and, as the former was intended to be but supplemental to the latter — and to embrace the comparatively few powers which could not be either exercised at all — or, if at all, could not be so well and safely exercised by the separate governments of the several States — it was proper that the former, and not the latter, should be enumerated and specified. But, although the treaty-making power is exclusively vested, and without enumeration or specification, in the government of the United States, it is nevertheless subject to several important limitations.
It is, in the first place, strictly limited to questions inter alias; that is, to questions between us and foreign powers which require negotiation to adjust them. All such clearly appertain to it. But to extend the power beyond these, be the pretext what it may, would be to extend it beyond its allotted sphere; and, thus, a palpable violation of the constitution -->constitution in the next place, limited by all the provisions of the constitution which inhibit certain acts from being done bconstitutionment, or any of its departments — of which description there are many. It is also limited by such provisions of the constitution as direct certain acts to be done in a particular way, and which prohibit the contrary; of which a striking example is to be found in that which declares that, "no money shall be drawn from the treasury but in consequence of appropriations to be made by law." This not only imposes an important restriction on the power, but gives to Congress, as the law-making power, and to the House of Representatives as a portion of Congress, the right to withhold appropriations; and, thereby, an important control over the treaty-making power, whenever money is required to carry a treaty into effect — which is usually the case, especially in reference to those of much importance. There still remains another, and more constitutionmitation; but of a more general and indefinite character. It can enter into no stipulation calculated to change the character of the government; or to do that which can only be done by the constitution-making power; or which is inconsistent with the nature and structure of the government — or the objects for which it was formed. Among which, it seems to be settled, that it cannot change or alter the boundary of a State — or cede any portion of its territory without its consent. Within these limits, all questions which may arise between us and other powers, be the subject matter what it may, fall within the limits of the treaty-making power, and may be adjusted by it.
The greater part of the powers delegated to Congress, relate, directly or indirectly, to one or the other of these two great divisions; that is, to those appertaining to the foreign relations of the States, or their exterior relations with each other. The former embraces the power to declare war; grant letters of marque and reprisals; make rules concerning captures on land and water; to raise and support armies; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces; to regulate commerce with foreign nations and the Indian tribes; and to exercise exclusive jurisdiction over all places purchased, with the consent of the States, for forts, magazines, dockyards, &c.
There are only two which apply directly to the exterior relations of the States with each other; the power to regulate commerce between them — and to establish post offices and post roads. But there are two others intimately connected with these relations — the one, to establish uniform rules of naturalization, and uniform laws on the subject of bankruptcies, throughout the United States — and the other, to secure, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries.
In addition, there is a class which relates to both. They consist of "the power to coin money, regulate the value thereof, and of foreign coins, and to fix the standard of weights and measures — to provide for the punishment of counterfeiting the securities and current coin of the United States; to provide for calling forth the militia, to suppress insurrections and repel invasions; to provide for organizing, arming and disciplining the militia, and for governing such parts of them as may be employed in the service of the United States; reserving to the States, respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress." The two first relate to the power of regulating commerce; and the others, principally, to the war power. Indeed, far the greater part of the powers vested in Congress relate to them.
These embrace all the powers expressly delegated to Congress — except, "the power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States — to establish tribunals inferior to the Supreme Court; to provide for calling forth the militia to execute the laws of the Union; to exercise exclusive jurisdiction over such district — not exceeding ten miles square, as may, by cession of particular States, and the acceptance of Congress, become the seat of government of the United States; and to make all laws necessary and proper for carrying into execution the foregoing powers, and all other powers vested in the government of the United States, or in any department or officer thereof." It is apparent, that all these powers relate to the other powers, and are intended to aid in carrying them into execution; and as the others are embraced in the two great divisions of powers, of which the one relates to their foreign relations, and the other to their exterior relations with each other, it may be clearly inferred that the regulation of these relations constituted the great, if not the exclusive objects for which the government was ordained and established.
If additional proof be required to sustain this inference, it may be found in the prohibitory and miscellaneous provisions of the constitution. A large portion of them are intended, directly, to regulate the exterior relations of the States with each other, which would have required treaty stipulations between them, had they been separate communities, instead of being united in a federal union. They are, indeed, treaty stipulations of the most solemn character, inserted in the compact of union. And here it is proper to remark, that there is a material difference between the modes in which these two great divisions of power are regulated. The powers embraced by, or appertaining to foreign relations, are left to be regulated by the treaty-making power, or by Congress; and, if by the latter, are enumerated and specifically delegated. They embrace a large portion of its powers. But those relating to the exterior relations of the States among themselvesconstitution exceptions, are regulated by provisions inserted in the constitution itself. To this extent, it is, in fact, a treaty — under the form of a constitutional compact — of the highest and most sacred character. It provides that no tax or duty shall be laid on articles exported from any State; that no preference shall be given, by any regulation of commerce or of revenue, to the ports of one State over those of another; nor shall any vessel bound to, or from one State, be obliged to enter, clear, or pay duties in another; that no State shall enter into any treaty, alliance, or confederation, grant letters of marque and reprisal; coin money; emit bills of credit; make any thing but gold or silver a tender in payment of debts, or pass any law impairing the obligation of contracts — that no State shall, without the consent of Congress, lay any import or export duties, except what may be absolutely necessary for the execution of its inspection laws; and that the net proceeds of all duties and imposts, laid by any State on imports or exports, shall be for the use of the treasury of the United States; and all such laws shall be subject to the revision and control of Congress; no State shall, without the consent of Congress, lay any duty on tonnage; keep troops, or ships of war, in time of peace; enter into any agreement or compact with another State or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay; that full faith and credit shall be given, in each State, to the public acts, records, and judicial proceedings of any other State; that the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States; that a person charged in any State, with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the executive authority of the State from which he fled, be delivered up to be removed to the State having jurisdiction of the crime; that no person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation thereof, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such labor may be due; that the United States shall guarantee to each State in this Union a republican form of government, and shall protect each of them against invasion — and, on application of the legislature, or of the executive, when the legislature cannot be convened, against domestic violence.
The other prohibitory provisions, and those of a miscellaneous character, contained in the constitution as ratified, provide against Congress prohibiting the emigration or importation of such persons as any of the States may choose to admit, prior to the year 1808; against the suspension of the writ of Habeas Corpus; against passing bills of attainder, and ex post facto laws; against laying a capitation or other direct tax, unless in proportion to population, to be ascertained by the census; against drawing money out of the treasury, except in consequence of appropriations made by law; against granting titles of nobility; against persons holding office under the United States, accepting any present or emolument, office or tide, from any foreign power, without the consent of Congress; for defining and punishing treason against the United States; for the admission of new States into the Union; for disposing of, and making rules and regulations respecting the territoryconstitutionroperty of the United constitutionnstitutionthe amendment of the constitution; for the validity of existing debts and engagements against the United States under the constitution; for theconstitutionf the constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States; that tconstitution every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding; and that members of Congress and of the State legislatures, and the executive and judicial officers of the United States, and of the several States, shall be bound by oath, or affirmation, to support the constitution; but that no religious test shall be required to hold office under the United States.
Twelve amendments, or, as they are commonly called, amended articles, have been added since its adoption. They provide against passing laws respecting the establishment of religion, or abridging its free exercise; for the freedom of speech and of the press; for the right of petition; for the right of the people to bear arms; and against quartering soldiers in any house against the consent of the owner; against unreasonable searches, or seizures of persons, papers, and effects; against issuing warrants, but on oath or affirmation; against holding persons to answer for a capital, or other infamous crime, except on presentment or indictment of a grand jury;constitutionc and speedy trial in all criminal prosecutions, by an impartial jury of the State and district where the offence is charged to have been committed; for the right of jury trial in controversies exceeding twenty dollars; against excessive bail and fines, and constitutionl and unusual punishments; against so construing the constitution as that the enumeration of certain powers should be made to disparage or deny those not enumerated; against extending the judicial power of the United States to any suit, in law or equity, against one of the United States, by citizens of another State, or citizens or subjects of a foreign state; and for the amendment of the constitution in reference to the election of the President and Vice-President. In addition, the amended article, already cited, provides that the powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively or to the people.
It will be manifest, on a review of all the provisions, including those embraced by the amendments, that none of them have any direct relation to the immediate obconstitutionich the union was formed; and that, with few exceptions, they are intended to guard against improper constructions of the constitution, or the abuse of the delegated powers by the government — or, to protect the government itself in the exercise of its proper functions.
In delegating power to the other two departments, the same general principle prevails. Indeed, in their very nature they are restricted, in a great measure, to the execution, each in its appropriate sphere, of the acts, and, of course, the powers vested in the legislative department; and, in this respect, their powers are consequently limited to the two great divisions which appertain to this department. But where either of them have other vested powers, beyond what is necessary for this purpose, it will be found, when I come to enumerate them, that, if they have any reference at all to the division of power between the general government and those of the several States, they directly relate to those appertaining to one or the other of these divisions.
The executive powers are vested in the President. They embrace the powers belonging to him, as commander in chief of the army and navy of the United States, and the militia of the several States, when called into the actual service of the United States — the right of requiring the opinion, in writing, of the principal officers in each of the executive departments, upon any subject relating to the duties of their respective offices; of granting reprieves and pardons for offences against the United States — except in cases of impeachment; of making treaties, by and with the advice and consent of the Senate — provided two-thirds of the Senators present concur; of nominating and, by and with the advice and consent of the Senate, appointing ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments have not been otherwise provided for, and which shall be established by law — reserving to Congress the right to invest, by law, the appointment of such inferior officers as they may think proper — in the President alone, in the courts of law, or in the heads of departments; of receiving ambassadors and other public ministers; of convening, on extraordinary occasions, both houses of Congress, or either of them; and, in case of disagreement between them, with respect to the time of adjournment, of adjourning them to such time as he may think proper; of commissioning all the officers of the United States. In addition, it is made his duty to give to Congress information of the state of the Union; and to recommend to their consideration, such measures as he may deem necessary and expedient; to take care that the laws are faithfully executed; and, finally, he is vested with the power of approving or disapproving bills passed by Congress, before they become laws — which is called his veto. By far the greater part of these powers and duties appertain to him as chief of the executive department. The principal exception is, the treaty-making power; which appertains exclusively to the foreign relations of the States — and, consequently, is embraced in that division of the delegated powers; as does, also, the appointment of ambassadors, other ministers and consuls, and the reception of the two former. The other exceptions are merely organic, without reference to any one class or division of powers between the two co-ordinate governments.
The judicial power of the United States is vested in the Supreme Court, and such inferior courts as Congress may, from time to time, ordain and establish. The judges hold their offices during good behavior; and have a fixed salary which can neither be increased nor diminished during their continuance in office. Thconstitutiontends to all cases in law or equity, arising under the constitution, the laws of the United States, and treaties made, or which shall be made under their authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and marine jurisdiction; to controversies to which the United States shall be a party; to those between two or more States; between citizens of different States; between citizens of the same State, claiming lands under grants of different States; and between a State and the citizens thereof, and foreign states, citizens or subjects. The fact that, in all cases, where the judicial power is extended beyond what may be regarded its appropriate sphere, it contemplates matters connected directly with the foreign or external relations of the States, rather than those connected with their exterior relations with each other — strikingly illustrates the position — that the powers appertaining to the one or the other of these relations, and those necessary to carry them into execution, embrace almost all that have been delegated to the United States. Indeed, on a review of the whole, it may be safely asserted, not only that they embrace almost all of the powers delegated, but that all of the general and miscellaneous provisions (excluding those, of course, belonging to the organism of government, whether they prohibit certain acts, or impose certain duties — as well as those intended to protect the government, and guard against its abuse of power) appertain, with few exceptions, to the one or the other of these divisions. For, if the principle which governed in the original division or distribution of powers between the two co-ordinate governments, be that already stated; that is, to delegate such powers only as could not be exercised at all, or as well, or safely exercised by the governments of the States acting separately, and to reserve the residue — it would be difficult to conceive what others could be embraced in them; since there are none delegated to either, which do not appertain to the States in their relations with each other, or in their relations with the rest of the world. As to all other purposes, the separate governments of the several States were far more competent and safe, than the general government of all the States. Their knowledge of the local interests and domestic institutions of these respectively, must be much more accurate, and the responsibility of each to their respective people much more perfect. This is so obvious, as to render it incredible, that they would have admitted the interference of a general government in their interior and local concerns, farther than was absolutely necessary to the regulation of their exterior relations with each other and the rest of the world — or that a general government should have been adopted for any other purpose. To this extent, it was manifestly necessary — but beyond this, it was not only not necessary, constitutioncalculated to jeopard, in part, the ends for which the constitution was adopted — "to establish justice, insure domestic tranquillity, and secure the blessings of liberty."
Having, now, enumerated the delegated powers, and laid down the principle which guided in drawinconstitutionetween them and the reserved powers, the next question which offers itself for consideration is; what provisions does the constitution of the United States, or the system itself, furnish, to preserve this, and its other divisions of power? and whether they are sufficient for the purpose?
The question, then, is — what provision has the constitution of the United Stateconstitutioneserve the division of powers among the several departments of the government? And this involves another; whether the departments are so constituted, that each has, within itself, the power of self-protection; the power, by which, it may prevent the others from encroaching on, and absorbing the portion vested in it, by the constitution? Without such power, the strongest would, in the end, inevitably absorb and concentrate the powers of the othersconstitutionas has been fully shown in the preliminary discourse — where, also, it is shown that there is but one mode in which this can be prevented; and that is, by investing each division of power, or the representative and organ of each, with a veto, or something tantamount, in some one form or another. To answer, then, the question proposed, it is necessary to ascertain what provisions the constitution, or the system itself, has made for the exercise of this important power. I shall begin with the legislative department, which, in all popular governments, must be the most prominent, and, at least in theory, the strongest.
Its powers are vested in Congress. To it, all the functionaries of the other two departments are responsible, through the impeaching power; while its members are responsible only to the people of their respective States — those of the Senate to them in their corporate character as States; and those of the House of Representatives, in their individual character as citizens of the several States. To guard its members more effectually against the conconstitutione other two departments, they are privileged from arrest in all cases, except for treason, felony, and breach of the peace — during their attendance on the session of their respective houses — and in going to and returning from the same; and from being questioned, in any other place, for any speech or debate in either house. It possesses besides, by an express provision of the consticonstitutionthe discretionary powers vested in the government, whether the same appertain to the legislative, executive, or judicial departments. It is to be found in the 1st ART., 8th SEC., 18th clause; which declares that Congress shall have power "to make all laws necessary and proper for carrying into execution the foregoing powers" (those vested in Congress), "and all other powers vested, by the constitution, in thconstitution of the United States, or in any department or officer thereof." This clause is explicit. It includes all that are usually called "implied powers;" that is — powers to carry into effect those expressly delegated; and vests them expressly in Congress, so clearly, as to exclude the possibility of doubt. Neither the judicial department, nor any officer of the government can exercise any power not expressly, and by name, vested in them, either by the constitution, or by an act of Congress: nor can they exercise any implied power, in carrying them into execution, without the express sanction of law. The effect of this is, to place the powers vested in the legislative department, beyond the reach of the undermining process of insidious construction, on the part of any of the other departments, or of any of the officers of government. With all these provisions, backed by its widely extended and appropriate powers — its security, resulting from freedom of speech in debate — and its close connection and immediate intercourse with its constituents, the legislative department is possessed of ample means to protect itself against the encroachment on, and absorption of its powers, by the other two departments. It remains to be seen, whether these, in their turn, have adequate means of protecting themselves, respectively, against the encroachments of each other — as well as of the legislative department. I shall begin with the executive.
Its powers are vested in the President. To protect them, the constitution, in the first place, makes him independent of Congress, by providing, that he "shall, at stated times, receive for his services, a compensation, which shall be neither increased nor diminished during the period for which he shall have been elected; and that he shall not receive, within that period, any other emolument from the United States, or any one of them."
He is, in the next place, vested with the power to veto, not only all acts of Congress — but it is also expressly provided that, "every order, resolution, or vote, to which the concurrence of the Senate and House of Representatives may be necessary (except on a question of adjournment), shall be presented to the President of the United States; and, before the same shall take effect, shall be approved by him; or being disapproved by him, shall be repassed by two-thirds of the Senate and House of Representatives, according to the rules and limitations prescribed in the case of a bill."
He is vested, in the next place, with the power of nominating and appointing, with the advice and consent of the Senate, all the officers of the government whose appointments are not otherwise provided for by the constitution; except such inferior officers as may be authorized, by Congress, to be appointed by the President alone, or by the courts of law, or heads of departments. I do not add the power ofconstitutionficers, the tenure of wconstitutione is not fixed by the constitution, which has grown into practice; because it is not a power vested in the President by the constitution, but belongs to the class of implied powers; and as such, can only be rightfully exercised and carried into effect by the authority of Congress.
He has, in the next place, the exclusive control of the administration of the government, with the vast patronage and influence appertaining to the distribution of its honors and emoluments; a patronage so great as to make the election of the President the rallying point of the two great parties that divide the country; and the successful candidate, the leader of the dominant party in power, for the time.
He is, besides, commander in chief of the army and navy; and of the militia, when called into the service of the United States. These, combined with his extensive powers, make his veto (which requires the concurrence of two-thirds of both houses to overrule it) almost as absolute as it would be without any qualification — during the term for which he is elected. The whole combined, vests the executive with ample means to protect its powers from being encroached on, or absorbed by the other departments.
Nor are those of the judiciary less ample, for the same purpose, against the two other departments. Its powers are vested in the courts of the United States. To secure the independence of the judges, they are appointed to hold their offices during good behavior; and to receive for their services, a compensation which cannot be diminished during their continuance in office. Besides these means for securing their independence, they have, virtually, a negative on the acts of the other departments — resulting from the nature of our system of government. This requires particular explanation. According to it, constitutions are of paramount authority to laws or acts of the government, or of any of its departments; so that, when the latter come in conflict with the former, they are null and void, and of no binding effect whatever. From this fact it results, that, when a case comes before the courts of the United States, in which a question of conflict between the acts of Congress or any departmentconstitutionthe judges are bound, from the necessity of the case, to determine whether, in fact, there is any conflict or not; and if, in their opinion, there be such conflict, to decide in favor of the constitution; and thereby, virtually, to annul or veto the act, as far as it relates to the department or government, and the parties to the suit or controversy. This, with the provisions to secure their independence, gives, not only means of self-protection, but a weight and dignity to the judicial department never before possessed by the judges in any other government of which we have any certain knowledge.
Butconstitutionple may be the means possessed by the several departments to protect themselves against the encroachments of each other, regarded as independent and irresponsible bodies, it by no means follows, that the equilibrium of power, established between them by the constitution, will, necessarily, remain undisturbed. For they are, in fact, neither independent nor irresponsible bodies. They are all representatives of the several States, either in their organized character of governments, or of their people, estimated in federal numbers; and are under the control of their joint majority — blended, however, in unequal prconstitutionn the several departments. In order, then, to preserve the equilibrium between the departments, it is indispensable to preserve that between the two majorities which have the power to control them, and to which they are all responsible, directly or indirectly. For it is manifest that if this equilibrium, established by the constitution, be so disturbed, as to give the ascendency to either, it must disturb, or would be calculated to disturb, in turn, the equilibrium between the departments constitutioninasmuch as the weight of the majority which might gain it, would be thrown in favor of the one or the other, as the means of increasing its influence over the government. In order, then, to determine whether the equilibrium between the departments is liable to be disturbed, it is necessary to ascertain what provisions the constitution has made to preserve it between the two majorities, in reference to the several departments; and to determine whether they are sufficient for the purpose intended. I shall, again, commence with the legislative.
In this department the two majorities or elements, of which the government is composed, act separately. Each has its own organ; one the Senate, and the other the House of Representatives: and each has, through its respective organ, a negative on the other, in all acts of legislation, which require their joint action. This gives to each complete and perfect means to guard against the encroachments of the other. The same is the case in the judiciary. There, the judges, in whom the powerconstitutionartment are vested, are nominated by the President, and, by and with the advice and consent of the Senate, appointed by him; which gives each element also a negative on the other; and, of course, like means of preserving the equilibrium established by the constitution between them. But the case is different in reference to the executive department.
The two elements in this department are blended into one, when the choice of a President is made by the electoral college — which, as has been stated, gives a great preponderance to the element representing the federal population of the several States, over that which represents them in their organized character as governments. To compensate this, a still greater preponderance is given to the latter, in the eventual cconstitution House of Representatives. But they have, in neither case, a veto upon the acts of each other; nor any equivalent means to prevent encroachments, in choosing the individual to be vested, for the time, with the powers of the department; and, hence, no means of preserving the equilibrium, as established between them by the constitution. The result has been — as it ever must be in such cases — the ascendency of the stronger element over the weaker. The incipient measure to effect this was adopted at an early period. The first step was, to diminish the number of candidates, from which the selection should be made, from the five, to the three highest on the listconstitutionl'> -->constitution; in order to lessen the chances of a failure to choose by the electoral college — to provide that the electors, instead of voting for two, without discriminating the offices, should designate which was for the President, and which for the Vice-President. This was effected in the regular way, by an amendment of the constitution. Since then, the constitution, as amended, has been, in practice, superseded, by what is called, the usage of parties; that is, by each selecting, informally, persons to meet at some central point, to nominate candidates for the Presidency and Vice-Presidency — with the avowed object of preventing the election from going into the House of Representatives; and, of course, by supconstitution eventual choice on the part of this body, to abolish, in effect, one of the two elements of which the government is constituted, so far, at least, as the execonstitutiontment is concerned. As it now stands, the complex and refined machinery provided by the constitution for the election of the President and Vice-President, is virtually superseded. The nomination of the successful party, by irresponsible individuals makes, in reality, the choice. It is in this way that the provisions of the constitution, which intended to give equal weight to the two elements in the executive department of the government, have been defeated; and an overwhelming preponderance given to that which is represented in the House of Representatives, over that which is represented in the Senate.
But the decided preponderance of this element in the executive department, cannot fail greatly to disturb the equilibrium between it and the other two departments, as established by the constitution. It cannot but throw the weight of the more populous States and sections on the side of that department, over which their control is the most decisive; and place the President, in whom its powers are vested for the time, more completely under their control. This, in turn, must place the honors and emoluments of the government, also, more under their control; and, of course, give a corresponding influence over all who aspire to participate in them; and especially over the members, for the time, of the legislative department. Even those, composing the judiciary, for the time, will not be unaffected by an influence so great and pervading.
I come now to examine, what means the constitution of the United States, or the system itself provides, for preserving the division between the delegated and reserved powers. The former are vested in the government of the United States; and the latter, where they have not been reserved to the people of the several States respectively, are vested in their respective State governments. The two, as has been established, stand in the relation of co-ordinate governments; that is, the government of the United States is, in each State, the co-ordinate of its separate government; and taken together, the two make the entire government of each, and of all the States. On the preservation of this peculiar and important division of power, depend the preservation of all the others, and the equilibrium of the entire system. It cannot be disturbed, without, at the same time, disturbing the whole, with all its parts.
The only means which the constitution of the United States contains or provides for its preservation, consists, in the first place, in the enumeration and specification of the powers delegated to the United States, and the express reservation to the States of all powers not delegated; in the next, in imposing such limitations on both governments, and on the States themselves, in their separate character, as were thought best calculated to prevent the abuse of constitutionhe disturbance of the equilibrium between the two co-ordinate governments; and, finally, in prescribing that the members of Congress, and of the legislatures of the several States, and all executive and judicial officers of the United States, and of the several States, shall be bound, by oath or affirmation, to suppconstitution -->constitution of the United States. These were, undoubtedly, proper and indispensable means; but that they were, of themselves, deemed insufficient to preserve, undisturbed, this new and important partition of power between co-ordinate governments, is clearly inferrible from the proceedings of the convention, and the writings and speeches of eminent individuals, pending the ratification of the constitution. No question connected with the formation and adoption of the constitution of the United States, excited deeper solicitude — or caused more discuconstitutionthis important partition of power. The ablest men divided in reference to iconstitutionthese discussions. One side maintained that the danger was, that the delegated would absorb the reserved; while the other not less strenuously contended, that the reserved would absorb the delegated powers. So widely extended was this diversity of opinion, and so deep the excitement it produced, that it contributed more than all other questions combined, to the organization of the two great parties, which arose with the formation of the constitution; and which, finally, assumed the names of "Federal" and "Republican." In all these discussions, neither side relied on the provisions of the constitution of the United States, just referred to, as the means of preserving the partition of power between the co-ordinate governments; and thereby, of preventing either from encroaching on, and absorbing the powers of the other. Both looked to the co-ordinate governments, to control each other; and by their mutual action and reaction, to keep each other in their proper spheres. The doubt, on one side, was, whether the delegated, were not too strong for the reserved powers; and, on the other, whether the latter were not too strong for the former. One apprehended that the end would be, consolidation; and the other, dissolution. Both parties, to make out their case, appealed to the respective powers of the two; compared their relative force, and decided accordingly, as the one or the other appeared the stronger. Both, in the discussion, assumed, that those who might administer the two co-ordinate governments, for the time, would stand in antagonistic relations to each other, and be ready to seize every opportunity to enlarge their own at the expense of the powers of the other; and rather hoped than believed, that this reciprocal action and reaction would prove so well balanced as to be sufficient to preserve the equilibrium, and keep each in its respective sphere.
Such were the views taken, and the apprehensions felt, on both sides, at the time. They were both right, in looking to the co-ordinate governments for the means of preserving the equilibrium between these two important classes of powers; but time and experience have proved, that both mistook the source and the character of the danger to be apprehended, and the means of counteracting it; and, thereby, of preserving the equilibrium, which both believed to be essential to the preservation of the complex system of government about to be established. Nor is it a subject of wonder, that statesmen, as able and experienced as the leaders of the two sides were, should both fall into error, as to what would be the working of political elements, wholly untried; and which made so great an innovation in governments of the class to which ours belonged. It is clear, from the references so frequently made to previous confederacies, in order to determine how the governmeconstitutionbe established, would operate, that the framers of the constitution themselves, as well as those who took an active part in discussing the question of its adoption, were far from realizing the magnitude of the change which was made by it in governments of that form. Had this been fully realized, they would never have assumed that those who administered the government of the United States, and those of the separate States, would stand in hostile relations to each other; or have believed that it would depend on the relative force of the powers delegated and the powers reserved, whether either would encroach on, and absorb the other — an assumption and belief which experience has proved to be utterly unfounded. The conflict took, from the first, and has continued ever since to move in, a very different direction. Instead of a contest for power between the government of the United States, on the one side, and the separate governments of the several States, on the other — the real struggle has been to obtain the control of the former — a struggle in which both States and people have united: And the result has shown that, instead of depending on the relative force of the delegated and reserved powers, the latter, in all contests, have been brought in aid of the former, by the States on the side of the party in the possession and control of the government of the United States — and by the States on the side of the party in the opposition, in their efforts to expel those in possession, and to take their place. There must then be at all times — except in a state of transition of parties, or from some accidental cause — a majority of the several States, and of their people, estimated in federal numbers, on the side of those in power; and, of course, on the side of the delegated powers and the government of the United States. Its real authority, therefore, instead of being limited to the delegated powers alone, must, habitually, consist of these, united with the reserved powers of the joint majority of the States, and of their population, estimated in federal numbers. Their united strength must necessarily give to the government of the United States, a power vastly greater than that of all the co-ordinate governments of the States on the side of the party in opposition. It is their united strength, which makes it one of the strongest ever established; greatly stronger than it could possibly be as a national government. And, hence, all conclusions, drawn from a supposed antagonism between the delegated powers, on the one hand, and the reserved powers, on the other, have proved, and must ever prove utterly fallacious. Had it, in fact, existed, there can now be no doubt, that the apprehensions of those, who feared that the reserved powers would encroach on and absorb the delegated, would have been realized, and dissolution, long since, been the fate of the system: for it was this very antagonism which caused the weakness of the confederation, and threatened the dissolution of the Union. The difference between it and the present government, in this respect, results from the fact, that the States, in the confederation, had but few and feeble motives to form combinations, in order to obtain the control of its powers; because neither the State governments, nor the citizens of the several States were subject to its control. Hence, they were more disposed to elude its requisitions, and reserve their means for their own control and use, than to enter into combinations to control its councils. But very different is the case in their existing confederated character. The present government possesses extensive and important powers; among others, that of carrying its acts into execution by its own authority, without the intermediate agency of the States. And, hence, the principal motives to get the control of the government, with all its powers and vast patronage; and for this purpose, to form combinations as the only means by which it can be accomplished. Hence, also, the fact, that the present danger is directly the reverse of that of the confederacy. The one tended to dissolution — the other tends to consolidation. But there is this difference between these tendencies. In the former, they were far more rapid — not because they were stronger, but because there were few or no impediments in their way; while in the latter, many and powerful obstacles are presented. In the case of the confederacy, the antagonistic position which the States occupied in respect to it — and their indifference to its acts, after the acknowledgment of their independence, led to a non-compliance with its requisitions — and this, without any active measure on their parts, was sufficient, if left to itself, to have brought about a dissolution of the Union, from its weakness, at no distant day. But such is not the case under the present system of government. To form combinations in order to get the control of the government, in a country of such vast extent — and consisting of so many States, having so great a variety of interests, must necessarily be a slow process, and require much time, before they can be firmly united, and settle down into two organized and compact parties. But the motives to obtain this control are sufficiently powerful to overcome all these impediments; and the formation of such parties is just as certain to result from the action of political affinities and antipathies, as the formation of bodies, where different elements in the material world, having mutual attraction and repulsion, are brought in contact. Nor is the organization of the government of the United States, which requires the concurrence of the two majorities to control it — though intended for constitutione — sufficient, of itself, to prevent it. The same constitution of man, which would, in time, lead to the organization of a party, consisting of a simple majority — if such had the power of control — will, just as certainly, in time, form one, consisting of the two combined. The only difference is, that the one would be formed more easily, and in a shorter time than the other. The motives are sufficiently strong to overcome the impediments in either case.
In forming these combinations, which, in fact, constitute the two parties, circumstances must, of course, exert a powerful influence. Similarity of origin, language, institutions, political principles, customs, pursuits, interests, color, and contiguity of situations — all contribute to facilitate them: while their opposites necessarily tend to repel them, and, thus, to form an antagonistic combination and party. In a community of so great an extent as ours, contiguity becomes one of the strongest elements in forming party combinations, and distance one of the strongest elements in repelling them. The reason is, that nothing tends more powerfully to weaken the social or sympathetic feelings, than remoteness; and, in the absence of causes calculated to create aversion, nothing to strengthen them more, than contiguity. We feel intensely the sufferings endured under our immediate observation — when we would be almost indifferent, were they removed to a great distance from us. Besides, contiguity of situation usually involves a similarity of interests — especially, when considered in reference to those more remote — which greatly facilitates the formation of local combinations and parties in a country of extensive limits. If to this, we add other diversities — of pursuits, of institutions, origin, and the like, which not unusually exist in such cases, parties must almost necessarily partake, from the first, more or less, of a local character: and, by an almost necessary operation, growing out of the unequal fiscal action of the government, as explained in the preliminary discourse, must become entirely so, in the end, if not prevented by the resistance of powerful causes. We accordingly find, that such has been the case with us, under the operation of the present government. From the first, they assumed, in some degree, this character; and have since been gradually tending more and more to this form, until they have become, almost entirely, sectional. When they shall have become so entirely — (which must inevitably be the case, if not prevented) — when the stronger shall concentrate in itself both the majorities wconstitutione elements of the government of the United States — (and this, it must shortly do) — every barrier, which the constitution, and the organism of the government oppose to one overruling combination of interests, will have been broken down, and the government become as absolute, as would be that of the mere numerical majority; unless, indeed, the system itself, shall be found to furnish some means sufficiently powerful to resist this strong tendency, inherent in governments like ours, to absorb and consolidate all power in its own hands.
What has been stated is sufficient to show, that no such means arconstitutionund in the constitution of the United States, or in the organism of the government. Nor can they be found in the right of suffrage; for it is through its instrumentality that the party combinations are formed. Neither can they be found in the fact, that the constitution of the United States is a written instrument; for this, of itself, cannot possibly enforce the limitations and restrictions which it imposes, as has been fully shown in the preliminary discourse. Nor can they be enforced, and the government held strictly to the sphere assigned, by resorting to a strict construction of the constitution — for the plain reason, that the stronger party will be in favor of a liberal construction; and the strict construction of the minority can be of no avail against the liberal construction of the majority — as has also been shown in the same discourse. Nor can they be found in the force of public opinion — operating through the Press; for it has been, therein, also shown, that its operation is similar to that of the right of suffrage; and that its tendency, with all its good effects in other respects, is to increase party excitement, and to strengthen the force of party attachments and party combinations, in consequence of its having become a party organ and the instrument of party warfare. Nor can the veto power of the President, or the power of the Judges to decide on the constitutionality of the acts of the other departments, furnish adequate means to resist it — however important they may be, in other respects, and in particular instances constitutionthe plain reason, that the party combinations which are sufficient to control the two majorities constituting the elements of the government of the United States, must, habitually, control all the departments — and make them all, in the end, the instruments of encroaching on, and absorbing the reserved powers; especially the executive department — since the provisions of the constitution, in reference to the election of the President and Vice-President, have been superseded, and their election placed, substantially, under the control of the single element of federal numbers. But if none of these can furnish the means of effective resistance, it would be a waste of time to undertake to show, that freedom of speech, or the trial by jury, or any guards of the kind, however indispensable as auxiliary means, can, of themselves, furnish them.
If, then, neither the constitution, nor any thing appertaining to it, furnishes means adequate to prevent the encroachment of the delegated on the reserved powers, they must be found in some other part of the system, if they are to be found in it at all. And, further — if they are to be found there, it must be in the powers not delegated; sconstitutionbeen shown that they are not to be found in those delegated, nor in any thing appertaining to them — and the two necessarily embrace all the powers of the whole system. But, if they are to be found in the reserved powers, it must be in those vested in the separate governments of the several States, or in those retained by the people of the several States, in their sovereign character — that character in which they ordained and established the constitution and government; and, in which, they can amend or abolish it — since all the powers, not delegated, are expressly reserved, by the 10th Article of Amendments, to the one or the other. In one, then, or the other of these, or in both, the means of resisting the encroachments of the powers delegated to the United States, on those reserved to the States respectively, or to the people thereof — and thereby to preserve the equilibrium between them, must be found, if found in the system at all. Indeed, in one constituted as ours, it would seem neither reasonable nor philosophical to look to the government of the United States, in which the delegated powers are vested, for the means of resisting encroachments on the reserved powers. It would not be reasonable; because it would be to look for protection against danger, to the quarter from which it was apprehended, and from which only it could possibly come. It would not be philosophical; because it would be against universal analogy. All organic action, as far as our knowledge extends — whether it appconstitutionconstitutionconstitutionill another step, connected with this, which will be necessary to complete the work of restoration. The provisions of the constitution in reference to the election of the President and Vice-President, which has been superseded in practice, must be restored. The virtual repeal of this provision, as already stated, has resulted in placing the control of their election in the hands of the leaders of the office-seekers and office-holders; and this, with the unrestricted power of removal from office, and the vast patronage of the government, has made their election the all absorbing question; and the possession of the honors and emoluments of the government, the paramount objects in the Presidential contest. Tconstitutions been, to increase vastly the authority of the President, and to enable him to extend his powers with impunity, under color of the right conceded him, against the express provision of the constitution, of deciding what means are necessary to carry into execution the powers vested in him. The first step in the enlargement of his authority, was to pervert the power of removal (the intent of which was, to enable him to supply the place of an incompetent or an unworthy officer, with the view of better administering the laws) into an instrument for punishing opponents and rewarding partisans. This has been followed up by other acts, which have greatly changed the relative powers of the departments, by increasing those of the executive. Even the power of making war — and the unlimited control over all conquests, during its continuance, have, it is to be apprehended, passed from Congress into the hands of the Presidconstitutioners, in consequence of all this, have accumulated to a degree little consistent with those of a cconstitutionate of a federal republic; and hence, the necessity for reducing them within their strict constitutional limits, and restoring the provisions of the constitution in reference to his election, in order to restore the government completely to its federal character. Experience may, perhaps, prove, that the provisions of the constitution in this respect are imperfect — that they are too complicated and refined for practice; and that a radical change is necessary in the organization of the executive department. If such should prove to be the case, the proper remedy would be, not to supersede them in practice, as has been done, but to apply to the power which has been provided to correct all its defects and disorders.
But the restoration of the government to its federal character, however entire and perfect it may be — will not, of itself, be sufficient to avert the evil alternatives — to the one or the other of which it must tend, as it is now operating. Had its federal character been rigidly maintained in practice from the first, it would have been all sufficient, in itself, to have secured the country against the dangerous condition in which it is now placed, in consequence of a departure from it. But the means which may be sufficient to prevent diseases, are not usually sufficient to remedy them. In slight cases of recent date, they may be — but additional means are necessary to restore health, when the system has been long and deeply disordered. Such, at present, is the condition of our political system. The very causes which have occasioned its disorders, have, at the same time, led to consequences, not to be removed by the means which would have prevented them. They have destroyed the equilibrium between the two great sections, and alienated that mutual attachment between them, which led to the formation of the Union, and the establishment of a common government for the promotion of the welfare of all.
When the government of the United States was established, the two sections were nearly equal in respect to the two elements of which it is composed; a fact which, doubtless, had much influence, in determining the convention to select them as the basis of its construction. Since then, their equality in reference to both, hconstitutionroyed, mainly through the action of the government established for their mutual benefit. The first step towards it occurred under the old Congress of the confederation. It was among its last acts. It took place while the convention, which formed the present constitution and government, was in session, and may be regarded as contemporaneous with it. I refer to the ordinance of 1787; which, among other things, contained a provision excluding slavery from the North-Western Territory; that is, from the whole region lying between the Ohio and Mississippi rivers. The effect of this was, to restrict the Southern States, in that quarter, to the country lying south of it; and to extend the Northern over the whole of that great and fertile region. It was literally to restrict the one and extend the other; for the whole territory belonged to Virginia, the leading State of the former section. She, with a disinterested patriotism rarely equalled, ceded theconstitutionatuitously, to the Union — with the exception of a very limited portion, reserved for the payment of her officers and soldiers, for services rendered in the war of the revolution. The South received no equivalent for this magnificent cession, except a pledge inserted in the ordinance, similar to that contained in the constitution of the United States, to deliver up fugitive slaves. It is probable that there was an understanding among the parties, that it should be inserted in both instruments — as the old Congress and the convention were then in session in the same place; and that it contributed much to induce the southern members of the former to agree to the ordinance. But be this as it may, both, in practice, have turned out equally worthless. Neither have, for many years, been respected. Indeed, the act itself was unauthorized. The articles of confederation conferred not a shadow of authority on Congress to pass the ordinance — as is admitted by Mr. Madison; and yet this unauthorized, one-sided act (as it has turned out to be), passed in the last moments of the old confederacy, was relied on, as a precedent, for excluding the South from two-thirds of the territory acquired from France by the Louisiana treaty, and the whole of the Oregon territory; and is now relied on to justify her exclusion from all the territory acquired by the Mexican war — and all that may be acquired — in any manner, hereafter. The territory from which she has already been excluded, has had the effect to destroy the equilibrium between the sections as it originally stood; and to concentrate, permanently, in the northern section the two majorities of which the government of the United States is composed. Should she be excluded from the territory acquired from Mexico, it will give to the Northern States an overwhelming preponderance in the government.
In the mean time the spirit of fanaticism, which had been long lying dormant, was roused into action by the course of the government — as has been explained. It aims, openly and directly, at destroying the existing relations between the races in the southern section; on which depend its peace, prosperity and safety. To effect this, exclusion from the territories is an important step; and, hence, the union between the abolitionists and the advocates of exclusion, to effect objects so intimately connected.
All this has brought about a state of things hostile to the continuance of the Union, and the duration of the government. Alienation is succeeding to attachment, and hostile feelings to alienation; and these, in turn, will be followed by revolution, or a disruption of the Union, unless timely prevented. But this cannot be done by restoring the government to its federal character — however necessary that may be as a first step. What has been done cannot be undone. The equilibrium between the two sections has been permanently destroyed by the measures above stated. The northern section, in consequence, will ever concentrate within itself the two majorities of which the government is composed; and should the southern be excluded from all territories, now acquired, constitutioneafter acquired, it will soon have so decided a preponderance in the government and the Union, as to be able to mould the constitution to its pleasure. Against this, the restoration of the federal character of the government can furnish no remedy. So long as it continues, there can be no safety for the weaker section. It places in the hands of the stronger and hostile section, the power to crush her and her institutions; and leaves her no alternative, but to resist, or sink down into a colonial condition. This must be the consequence, if some effectual and appropriate remedy be not applied.
The nature of the disease is such, that nothing can reach it, short of some organic change — a change which shall so modify the constitution, as to give to the weaker section, in someconstitutionther, a negative on the action of the government. Nothing short of this can protect the weaker, and restore harmony and tranquillity to the Union, by arresting, effectually, the tendency of the dominant and stronger section to oppress the weaker. When the constitution was formed, the impression was strong, that the tendency to conflict would be between the larger and smaller States; and effectual provisions were, accordingly, made to guard against it. But experience has proved this to have been a mistake; and that, instead of being, as was then supposed, the conflict is between the two great sections, which are so strongly distinguished by their institutions, geographical character, productions and pursuitsconstitutioneen then as clearly perceived as it now is, the same jealousy which so vigilantly watched and guarded against the danger of the larger States oppressing the smaller, would have taken equal precaution to guard against the same danger between the two sections. It is for us, who see and feel it, to do, what the framers of tconstitutionion would have done, had they possessed the knowledge, in this respect, which experience has given to us — that is — provide against the dangers which the system has practically developed; and which, had they been foreseen at the time, and left without guard, would undoubtedly have prevented the States, forming the southern section of the confederacy, from ever agreeing to the constitution; and which, under like circumstances, were they now out of, would forever prevent them from entering into, the Union.
How the constitution could best be modified, so as to effect the object, can only be authoritatively determined by the amending power. It may be done in various ways. Among others, it might be effected through a reorganization of the executive department; so that its powers, instead of being vested, as they now are, in a single officer, should be vested in two — to be so elected, as that the constitutione constituted the special organs and representatives of the respective sections, in the executive department of the government; and requiring each to approve all the acts of Congress before they shall become laws. One might be charged with the administration of matters connected with the foreign relations of the country — and the other, of such as were connected with its domestic institutions; the selection to be decided by lot. It would thus effect, more simply, what was intended by the original provisions of the constitution, in giving to one of the majorities composing the government, a decided preponderance in the electoral college — and to the other majority a still more decided influence in the eventual choice — in case the college failed to elect a President. It was intended to effect an equilibrium between the larger and smaller States in this department — but which, in practice, has entirely failed; and, by its failure, done much to disturb the whole system, and to bring about the present dangerous state of things.
Indeed, it may be doubted, whether the framers of the constitution did not commit a great mistake, in constituting a single, instead of a plural executive. Nay, it may even be doubted whether a single chief magistrate — invested with all the powers properly appertaining to the executive department of the government, as is the President — is compatible with the permanence of a popular government; especially in a wealthy and populous community, with a large revenue and a numerous body of officers and employees. Certain it is, that there is no instance of a popular government so constituted, which has long endured. Even ours, thus far, furnishes no evidence in its favor, and not a little against it; for, to it, the present disturbed and dangerous state of things, which threatens the country with monarchy, or disunion, may be justly attributed. On the other hand, the two most distinguished constitutional governments of antiquity, both in respect to permanence and power, had a dual executive. I refer to those of Sparta and of Rome. The former had two hereditary, and the latter two elective chief magistrates. It is true, that England, from which ours, in this respect, is copied, has a single hereditary head of the executive department of her government — but it is not less true, that she has had many and arduous struggles, to prevent her chief magistrate from becoming absolute; and that, to guard against it effectually, she was finally compelled to divest him, substantially, of the power of administering the government, by transferring it, practically, to a cabinet of responsible ministers, who, by established custom, cannot hold office, unless supported by a majority of the two houses of Parliament. She has thus avoided the danger of the chief magistrate becoming absolute; and contrived to unite, substantially, a single with a plural executive, in constituting that department of her government. We have no such guard, and can have none such, without an entire change in the character of our government; and her example, of course, furnishes no evidence in favor of a single chief magistrate in a popular form of government like ours — while the examples of former times, and our own thus far, furnish strong evidence against it.
But it is objected that a plural executive necessarily leads to intrigue and discord among its members; and that it is inconsistent with prompt and efficient action. This may be true, when they are all elected by the same constituency; and may be a good reason, where this is the case, for preferring a single executive, with all its objections, to a plural executive. But the case is very different where they are elected by different constituencies — having conflicting and hostile interests; as would be the fact in the case under consideration. Here the two would have to act, concurringly, in approving the acts of Congress — and, separately, in the sphere of their respective departments. The effect, in the latter case, would be, to retain all the advantages of a single executive, as far as the administration of the laws were concerned; and, in the former, to insure harmony and concord between the two sections, and, through them, in the government. For as no act of Congress could become a law without the assent of the chief magistrates representing both sections, each, in the elections, would choose the candidate, who, in addition to being faithful to its interests, would best command the esteem and confidence of the other section. And thus, the presidential election, instead of dividing the Union into hostile geographical parties, the stronger struggling to enlarge its powers, and the weaker to defend its rights — as is now the case — would become the means of restoring harmony and concord to the country and the government. It would make the Union a union in truth — a bond of mutual affection and brotherhood — and not a mere connection used by the stronger as the instrument of dominion and aggrandizement — and submitted to by the weaker only from the lingering remains of former attachment, and the fading hope of being able to restore the government to what it was originally intended to be, a blessing to all.
Such is the disease — and such the character of the only remedy which can reach it. In conclusion, there remains to be considered, the practical question — Shall it be applied? Shall the only power which can apply it be invoked for the purpose?
The responsibility of answering this solemn question, rests on the States composing the stronger section. Those of the weaker are in a minority, both of the States and of population; and, of consequence, in every department of the government. They, then, cannot be responsible for an act which requires the concurrence of two-thirds of both houses of Congress, or two-thirds of the States to originate, and three-fourths of the latter to consummate. With such difficulties in their way, the States of the weaker section can do nothing, however disposed, to save the Union and the government, without the aid and co-operation of the States composing the stronger section: but with their aid and co-operation both may be saved. On the latter, therefore, rests the responsibility of invoking the high power, which alone can apply the remedy — and, if they fail to do so, of all the consequences which may follow.
Having now finished what I proposed to say on the constitution and government of the United States, I shall conclude with a few remarks relative to the constitution and governments of the individual States. Standing, as they do, in the relation of co-ordinates with the constitution and government of the United States, whatever may contribute to derange and disorder the one, must, necessarily contribute, more or less, to derange and disorder the other; and, thus, the whole system. And hence the importance — viewed simply in reference to the government of the United States, without taking into consideration those of the several States — that the individual governments of each, as well as the united government of all, should assume and preserve the constitutional, instead of the absolute form of popular government — that of the concurrent, instead of the numerical majority.
It is much more difficult to give to the government of the States, this constitutional form, than to the government of the United States; for the same reason that it is more easy to form a constitutional government for a community divided into classes or orders, than for one purely popular. Artificial distinctions of every description, be they of States or Estates, are more simple and strongly marked than the numerous and blended natural distinctions of a community purely popular. But difficult as it is to form such constitutional governments for the separate States, it may be affected by making the several departments, as far as it may be necessary, the organs of the more strongly marked interests of the State, from whatever causes they may have been produced — and by such other devices, whereby the sense of the State may be taken by its parts, and not as a whole — by the concurrent, and not by the numerical majority. It is only by the former that it can be truly taken. Indeed, the numerical majority often fails to accomplish that at which it professes to aim — to take truly the sense of the majority. It assumes, that by assigning to every part of the State a representative in every department of its government, in proportion to its population, it secures to each a weight in the government, in exact proportion to its population, under all circumstances. But such is not the fact. The relative weight of population depends as much on circumstances, as on numbers. The concentrated population of cities, for example, would ever have, under such a distribution, far more weight in the government, than the same number in the scattered and sparse population of the country. One hundred thousand individuals concentrated in a city two miles square, would have much more influence than the same number scattered over two hundred miles square. Concert of action and combination of means would be easy in the one, and almost impossible in the other; not to take into the estimate, the great control that cities have over the press, the great organ of public opinion. To distribute power, then, in proportion to population, would be, in fact, to give the control of the government, in the end, to the cities; and to subject the rural and agricultural population to that description of population which usually congregate in them — and ultimately, to the dregs of their population. This can only be counteracted by such a distribution of power as would give to the rural and agricultural population, in some one of the two legislative bodies or departments of the government, a decided preponderance. And this may be done, in most cases, by allotting an equal number of members in one of the legislative bodies to each election district; as a majority of the counties or election districts will usually have a decided majority of its population engaged in agricultural or other rural pursuits. If this should not be sufficient, in itself, to establish an equilibrium — a maximum of representation might be established, beyond which the number allotted to each election district or city should never extend.
Other means of a similar character might be adopted, by which, the different and strongly marked interests of the States — especially those resulting from geographical features, or the diversity of pursuits, might be prevented from coming into conflict, and the one secured against the control of the other. By these, and other contrivances suited to the peculiar condition of a State, its government might be made to assume the character of that of a concurrent majority, and have all the tranquillity and stability belonging to such a form of government; and thereby avoid the disorder and anarchy in which the government of the numerical majority must ever end. While the government of the United States continues, it will, indeed, require a much less perfect government on the part of a State, to protect it from the evils to which an imperfectly organized government would expose it, than if it formed a separate and independent community. The reason is, that the States, as members of a Union, bound to defend each other against all external dangers and domestic violence, are relieved from the necessity of collecting and disbursing large amounts of revenue, which otherwise would be required; and are, thereby, reconstitutionthat increased tendency to conflict and disorder which ever accompanies an increase of revenue and expenditures. In order to give a practical illustration of the mode in which a State government may be organized, on the principle of the concurrent majority, I shall, in concluding this discourse, give a brief account of the constitution and government of the State of South Carolina.
Its government, like that of all the other States, is divided into three departments — the Legislative, Executive, and Judicial. Its executive powers, as in all the others, are vested in a single chief magistrate. He is elected by the legislature, holds his office for two years, and is not again eligible for two years after the expiration of the term for which he was elected. His powers and patronage are very limited. The judges are, also, appointed by the legislature. They hold their office during good behavior. The legislative department is, like that of all the other States, divided into two bodies, the Senate and the House of Representatives. The members of the former are divided into two classes, of which the term of one expires every other year. The members of the House are elected for two years. The two are called, when convened, the General Assembly. In addition to the usual and appropriate power of legislative bodies, it appoints all the important officers of the State. The local officers are elected by the people of the respective districts (counties) to which they belong. Tconstitutionsuffrage, with few and inconsiderable exceptions, is universal. No convention of the people can be called, but by the concurrence of two-thirds of both houses — that is — two-thirds, respectively, of the entire representative body. Noconstitutionconstitution be amended, except by an act of the General Assembly, passed by two-thirds of both bodies of the whole representatconstitutionsed again, in like manner, at the first session of the assembly immediately following the next election of the members of the House of Representatives. But that which is peculiar to its constitution, and which distinguishes it from those of all the other States, is, the principle on which power is distributed among the different portions of the State. It is this, indeed, which makes the constitution, in contradistinction to the government. The elements, according to which power is distributed, are taxation, property, and election districts. In order to understand why they were adopted, and how the distribution has affected the operations of government, it will be necessary to give a brief sketch of the political history of the State.
The State was first settled, on the coast, by emigrants from England and France. Charleston became the principal town; and to it the whole political power of the colony, was exclusively confined, during the government of the Lords Proprietors — although its population was spread over the whole length of its coast, and to a considerable distance inland, and the region occupied by the settlements, organized into parishes. The government of these was overthrown by the people, and the colony became a dependent on the Crown. The right of electing members to the popular branch of the legislature, was extended to the parishes. Under the more powerful protection of the Crown, the colony greatly increased, and extended still further inland, towards the falls of the great rivers — carrying with them the same organization.
About the middle of the last century, a current of population flowed in from New Jersey, Pennsylvania, Maryland, Virginia, and North Carolina, to the region extending from the falls of the rivers to the mountains — now known as the upper countryconstitutionistinction to the section lying below. Between the two settlements there was a wide unsettled space; aconstitutionsiderable length of time no political connection, and little intercourse existed between them. The upper country had no representation in the government, and no political existence as a constituent portion of the State, until a period near the commencement of the revolution. Indeed during the revolution, and until the formation of the present constitution, in 1790, its political weight was scarcely felt in the government. Even then, although it had become the most populous section, power was so distributed under the new constitution, as to leave it in a minority in every department of the government.
Such a state of things could not long continue without leading to discontent. Accordingly, a spirited movement or agitation commenced openly in 1794, the object of which was to secure a weight in the government, proportional to its population. Once commenced, it continued to increase with the growing population of that section, until its vconstitution the distraction and disorder which it occasioned, convinced the reflecting portion of both sections, that the time had arrived when a vigorous effort should be made to briconstitutionlose. For this purpose, a successful attempt was made in the session of 1807. Thconstitutionion was wise and patriotic enough to propose an adjustment of the controversy, by giving to each an equal participation in the government; and the upper section, as wisely and patriotically, waived its claims, and accepted the compromise. To carry it into execution, an act was passed during the session to amend the constitution, according to the form it prescribes; and again passed, in like manner, during the ensuing session — an intervening election of the members of the House of Representatives having taken place — and, thereby, became a part of the constitution as it now stands. The object intended to be effected will explain the provisions of the amendment; and why it was necessary to incorporate in the constitution the three elements above stated.
To effect this, the Senate, which consists of one member from each election district, except Charleston, which has two (one for each of its two parishes), remained unchanged. This, in consequence of the organization of the lower district into parishes, and these again into election districts, gave the lower section a decided preponderance in that branch of the legislature. To give the upper section a like preponderance in the House of Representatives, it became necessary to remodel it. For this purpose, there were assigned to this branch of the legislature, one hundred and twenty-four members — of which sixty-two were allotted to white population, and sixty-two to taxation; to be distributed according to the election districts — giving to each the number it would be entitled to under the combined ratios of the two elements. To ascertain this proportion, from time to time, a census of the population was ordered to be taken every ten years, and a calculation made, at the same time, of the amount of the tax paid by each election district during the last ten years; in order to furnish the data on which to make the distribution. These gave to the upper section a preponderance, equally decisive, in the House of Representatives. And thus an equilibrium was established between the two sections in the legislative department of the government; and, as the governor, judges, and all the important officers under the government are appointed by the legislature — an equilibrium in every department of the government. By making the election districts the element of which one branch of the legislature is constituted, it protects the agricultural and rural interests against the preponderance, which, in time, the concentrated city population might otherwise acquire — and by making taxation one of the elements of which the other branch is composed, it guards effectually against the abuse of the taxing power. The effect of such abuse would be, to give to the portion of the State which might be overtaxed, an increased weight in the government proportional to the excess — and to diminish, in the same proportion, the weight of the section which might exempt itself from an equal share of the burden of taxation.
The results which followed the introduction of these elements into the constitution, in the manner stated, were most happy. The government — instead of being, as it was under the constitution of 1790, the government of the lower section — or becoming, subsequently, as it must have become, the government of the upper section, had numbers constituted the only element — was converted into that of the concurrent majority, and made, emphatically, the government of the entire population — of the whole people of South Carolina — and not of one portion of its people over another portion. The consequence was, the almost instantaneous restoration of harmony and concord between the two sections. Party division and party violence, with the distraction and disorder attendant upon them, soon disappeared. Kind feelings, and mutual attachment between the two sections, took their place — and have continued uninterrupted for more than forty years. The State, as far as its internal affairs are concerned, may be literally said to have been, during the whole period, without a party. Party organization, party discipline, party proscription — and their offspring, the spoils principle, have been unknown to the State. Nothing of the kind is necessary to produce concentration; as our happy constitution makes an united people — with the exception of occasional, but short local dissensions, in reference to the action of the federal government — and even the most violent of these ceased, almost instantly, with the occasion which produced it.
Such are the happy fruits of a wisely constituted Republic — and such are some of the means by which it may be organized and established. Ours, like all other well-constituted constitutional governments, is the offspring of a conflict, timely and wisely compromised. May its success, as an example, lead to its imitation by others — until our whole system — the united government of all the States, as well as the individual governments of each — shall settle down in like concord and harmony.
 1st ARTICLE 9 and 10 SECTION.
 See Federalist, Nos. 39 and 40.
 1st ART. 2d SEC. of the Constitution.
 1st ART. 2d SEC. of the Constitution.
 2d ART. 1st SEC. of the Constitution.
 1st ART. 2d SEC. of Constitution.
 2d ART. 1st SEC. 6th clause of the Constitution.
 1st ART. 7th SEC. 7th clause of the Constitution.
 Amendments, ART. XI.
 Reference is here made to various pencil notes in the margin of the manuscript, which, from the contractions used and the illegible manner in which they are written, I have not been able satisfactorily to decipher; and have, therefore, not incorporated with the text. They indicate that the author designed to have elaborated more fully this part of the subject — and, as far as I can gather the meaning, to have shown that the State courts, in taking cognizance of cases in which the constitution, treaties, and laws of the United Statesconstitutionn question, act, not in virtue oconstitutionion of the constitution or laws of the United States, but by an authority independent of both. That this authority is the constitution-making power — the people of the States respectively. That, according to a principle of jurisprudence, universally admitted, courts of justice must look to the whole law, by which their decisions are to be guided and governed. That this principle is eminently applicable in the cases mentioned. That, as the constitution and laws of the United States are the constitution and laws of each State, the State courtsconstitutionhe right — and are in duty bound to decide on the validity of such laws as mconstitutionn in question, in all cases rightfully before them. And that the principle which would authorize an appeal from the decision of the highest judicial tribunal of a State to the Supreme Court of the United States, in cases where the constitution, treaties, and laws of the United States are drawn in question, would equally authorize an appeal from the latter to the former, in cases where the constitution and laws of the State have been drawn in question, and the decision has been adverse to them. — Cralle.
 38th No. of the Federalist.