New States, indeed, have been organized and been admitted into the Union without an enabling act of Congress; but the case of Kansas, if nothing else, proves that the proceeding is irregular, illicit, invalid, and dangerous. Congress, of course, can condone the wrong and validate the act, but it were better that the act should be validly done, and that there should be no wrong to condone. Territories have organized as States, adopted State const.i.tutions, and inst.i.tuted State governments under what has been called "squatter sovereignty;" but such sovereignty has no existence, because sovereignty is attached to the domain; and the domain is in the United States. It is the offspring of that false view of popular sovereignty which places it in the people personally or generically, irrespective of the domain, which makes sovereignty a purely personal right, not a right fixed to the soil, and is simply a return to the barbaric const.i.tution of power. In all civilized nations, sovereignty is inseparable from the state, and the state is inseparable from the domain. The will of the people, unless they are a state, is no law, has no force, binds n.o.body, and justifies no act.
The regular process of forming and admitting new States explains admirably the mutual relation of the Union and the several States. The people of a Territory belonging to the United States or included in the public domain not yet erected into a State and admitted into the Union, are subjects of the United States, without any political rights whatever, and, though a part of the population, are no part of the sovereign people of the United States. They become a part of that people, with political rights and franchises, only when they are erected into a State, and admitted into the Union as one of the United States. They may meet in convention, draw up and adopt a const.i.tution declaring or a.s.suming them to be a State, elect State officers, senators, and representatives in the State legislature, and representatives and senators in Congress, but they are not yet a State, and are, as before, under the Territorial government established by the General Government. It does not exist as a State till recognized by Congress and admitted into the Union. The existence of the State, and the rights and powers of the people within the State, depend on their being a State in the Union, or a State united. Hence a State erected on the national domain, but itself outside of the Union, is not an independent foreign State, but simply no State at all, in any sense of the term. As there is no union outside of the States, so is there no State outside of the Union; and to be a citizen either of a State or of the United States, it is necessary to be a citizen of a State, and of a State in the Union. The inhabitants of Territories not yet erected into States are subjects, not citizens--that is, not citizens with political rights. The sovereign people are not the people outside of State organization, nor the people of the States severally, but the distinct people of the several States united, and therefore most appropriately called the people of the United States.
This is the peculiarity of the American const.i.tution and is substantially the very peculiarity noted and dwelt upon by Mr. Madison in his masterly letter to Edward Everett, published in the "North American Review," October, 1830.
"I In order to understand the true character of the const.i.tution of the United States," says Mr. Madison, "the error, not uncommon, must be avoided of viewing it through the medium either of a consolidated government or of a confederated government, whilst it is neither the one nor the other, but a mixture of both. And having, in no model, the similitudes and a.n.a.logies applicable to other systems of government, it must, more than any other, be its own interpreter, according to its text and the facts in the case.
"From these it will be seen that the characteristic peculiarities of the const.i.tution are: 1. The mode of its formation. 2. The division of the supreme powers of government between the States in their united capacity and the States in their individual capacities.
"1. It was formed not by the governments of the component States, as the Federal Government, for which it was subst.i.tuted, was formed; nor was it formed by a majority of the people of the United States as a single community, in the manner of a consolidated government. It was formed by the States; that is, by the people in each of the States, acting in their highest sovereign capacity, and formed consequently by the same authority which formed the State const.i.tution.
"Being thus derived from the same source as the const.i.tutions of the States, it has within each State the same authority as the const.i.tution of the State, and is as much a const.i.tution in the strict sense of the term, within its prescribed sphere, as the const.i.tutions of the States are within their respective spheres; but with this obvious and essential difference, that, being a compact among the States in their highest capacity, and const.i.tuting the people thereof one people for certain purposes, it cannot be altered or annulled at the will of the States individually, as the const.i.tution of a State may be at its individual will.
"2. And that it divides the supreme powers of government between the government of the United States and the governments of the individual States, is stamped on the face of the instrument; the powers of war and of taxation, of commerce and treaties, and other enumerated powers vested in the government of the United States, are of high and sovereign a character as any of the powers reserved to the State governments."
Mr. Jefferson, Mr. Webster, Chancellor Kent, Judge Story, and nearly all the old Republicans, and even the old Federalists, on the question as to what is the actual const.i.tution of the United States, took substantially the same view; but they all, as well as Mr. Madison himself, speak of the written const.i.tution, which on their theory has and can have only a conventional value. Mr. Madison evidently recognizes no const.i.tution of the people prior to the written const.i.tution, from which the written const.i.tution, or the const.i.tution of the government, derives all its force and vitality. The organization of the American people, which he knew well--no man better,--and which he so justly characterizes, he supposes to have been deliberately formed by the people themselves, through the convention--not given them by Providence as their original and inherent const.i.tution. But this was merely the effect of the general doctrine which he had adopted, in common with nearly all his contemporaries, of the origin of the state in compact, and may be eliminated from his view of what the const.i.tution actually is, without affecting that view itself.
Mr. Madison lays great stress on the fact that though the const.i.tution of the Union was formed by the States, it was formed, not by the governments, but by the people of the several States; but this makes no essential difference, if the people are the people of the States, and sovereign in their severalty, and not in their union. Had it been formed by the State governments with the acquiescence of the people, it would have rested on as high authority as if formed by the people of the State in convention a.s.sembled. The only difference is, that if the State ratified it by the legislature, she could abrogate it by the legislature; if in convention, she could abrogate it only in convention. Mr. Madison, following Mr. Jefferson, supposes the const.i.tution makes the people of the several States one people for certain specific purposes, and leaves it to be supposed that in regard to all other matters, or in all other relations, they are sovereign; and hence he makes the government a mixture of a consolidated government and a confederated government, but neither the one nor the other exclusively. Say the people of the United States were one people in all respects, and under a government which is neither a consolidated nor a confederated government, nor yet a mixture of the two, but a government in which the powers of government are divided between a general government and particular governments, each emanating from the same source, and you will have the simple fact, and precisely what Mr.
Madison means, when is eliminated what is derived from his theory of the origin of government in compact. It is this theory of the conventional origin of the const.i.tution, and which excludes the Providential or real const.i.tution of the people, that has misled him and so many other eminent statesmen and const.i.tutional lawyers.
The convention did not create the Union or unite the States, for it was a.s.sembled by the authority of the United States who were present in it.
The United States or Union existed before the convention, as the convention itself affirms in declaring one of its purposes to be "to provide for a more perfect union." If there had been no union, it could not and would not have spoken of providing for a more perfect union, but would have stated its purpose to be to create or form a union. The convention did not form the Union, nor in fact provide for a more perfect union; it simply provided for the more perfect representation or expression in the General government of the Union already existing. The convention, in common with the statesmen at the time, recognized no unwritten or Providential const.i.tution of a people, and regarded the const.i.tution of government as the const.i.tution of the state, and consequently sometimes put the state for the government. In interpreting its language, it is necessary to distinguish between its act and its theory. Its act is law, its theory is not. The convention met, among other things, to organize a government which should more perfectly represent the union of the States than did the government created by the Articles of Confederation.
The convention, certainly, professes to grant or concede powers to the United States, and to prohibit powers to the States; but it simply puts the state for the government. The powers of the United States are, indeed, grants or trusts, but from G.o.d through the law of nature, and are grants, trusts, or powers always conceded to every nation or sovereign people. But none of them are grants from the convention.
The powers the convention grants or concedes to the United States are powers granted or conceded by the United States to the General government it a.s.sembled to organize and establish, which, as it extends over the whole population and territory of the Union, and, as the interests it is charged with relate to all the States in common, or to the people as a whole, is with no great impropriety called the government of the United States, in contradistinction from the State governments, which have each only a local jurisdiction. But the more exact term is, for the one, the general government, and for the others, particular governments, as having charge only of the particular interests of the State; and the two together const.i.tute the government of the United States, or the complete national government; for neither the General government nor the State government is complete in itself.
The convention developed a general government, and prescribed its powers, and fixed their limits and extent, as well as the bounds of the powers of the State or particular governments; but they are the United States a.s.sembled in convention that do all this, and, therefore, strictly speaking, no powers are conceded to the United States that they did not previously possess. The convention itself, in the const.i.tution it ordained, defines very clearly from whom the General government holds its powers. It holds them, as we I have seen, from "We, the people of the United States;" not we, the people of the States severally, but of the States united. If it had meant the States severally, it would have said, We, the States; if it had recognized and meant the population of the country irrespective of its organization into particular States, it would have said simply, We, the people. By saying "We, the people of the United States," it placed the sovereign power where it is, in the people of the States united.
The convention ordains that the powers not conceded to the General government or prohibited to the particular governments, "are reserved to the States respectively, or to the people." But the powers reserved to the States severally are reserved by order of the United States, and the powers not so reserved are reserved to the people. What people?
The first thought is that they are the people of the States severally; for the const.i.tution understands by people the state as distinguished from the state government; but if this had been its meaning in this place, it would have said, "are reserved to the States respectively, or to the people" thereof. As it does not say so, and does not define the people it means, it is necessary to understand by them the people called in the preamble "the people of the United States." This is confirmed by the authority reserved to amend the const.i.tution, which certainly is not reserved to the States severally, but necessarily to the power that ordains the const.i.tution--"We, the people of the United States." No power except that which ordains is or can be competent to amend a const.i.tution of government. The particular mode prescribed by the convention in which the const.i.tution of the government may be amended has no bearing on the present argument, because it is prescribed by the States united, not severally, and the power to amend is evidently reserved, not indeed to the General government, but to the United States; for the ratification by any State or Territory not in the Union counts for nothing. The States united, can, in the way prescribed, give more or less power to the General government, and reserve more or less power to the States individually. The so-called reserved powers are really reserved to the people of the United States, who can make such disposition of them as seems to them good.
The conclusion, then, that the General government holds from the States united, not from the States severally, is not invalidated by the fact that its const.i.tution was completed only by the ratification of the States in their individual capacity. The ratification was made necessary by the will of the people in convention a.s.sembled; but the convention was competent to complete it and put it in force without that ratification, had it so willed. The general practice under the American system is for the convention to submit the const.i.tution it has agreed on to the people, to be accepted or rejected by a plebiscitum; but such submission, though it may be wise and prudent, is not necessary. The convention is held to be the convention of the people, and to be clothed with the full authority of the sovereign people, and it is in this that it differs from the congress or the legislature. It is not a congress of delegates or ministers who are obliged to act under instructions, to report their acts to their respective sovereigns for approval or rejection; it is itself sovereign, and may do whatever the people themselves can do. There is no necessity for it to appeal to a plebiscitum to complete its acts. That the convention, on the score of prudence, is wise in doing so, n.o.body questions; but the convention is always competent, if it chooses, to ordain the const.i.tution without appeal. The power competent to ordain the const.i.tution is always competent to change, modify, or amend it. That amendments to the const.i.tution of the government can be adopted only by being proposed by a convention of all the States in the Union, or by being proposed, by a two-thirds vote of both houses of Congress, and ratified by three-fourths of the States, is simply a conventional ordinance, which the convention can change at its pleasure. It proves nothing as it stands but the will of the convention.
The term ratification itself, because the term commonly used in reference to treaties between sovereign powers, has been seized on, since sometimes used by the convention, to prove that the const.i.tution emanates from the States severally, and is a treaty or compact between sovereign states, not an organic or fundamental law ordained by a single sovereign will; but this argument is inadmissible, because, as we have just seen, the convention is competent to ordain the const.i.tution without submitting it for ratification, and because the convention uses sometimes the word adopt instead of the word ratify.
That the framers of the const.i.tution held it to be a treaty, compact, or agreement among sovereigns, there is no doubt, for they so held in regard to all const.i.tution of government; and there is just as little doubt that they intended to const.i.tute, and firmly believed that they were const.i.tuting a real government. Mr. Madison"s authority on this point is conclusive. They unquestionably regarded the States, prior to the ratification of the const.i.tution they proposed, as severally sovereign, as they were declared to be by the old Articles of Confederation, but they also believed that all individuals are sovereign prior to the formation of civil society. Yet very few, if any, of them believed that they remained sovereign after the adoption of the const.i.tution; and we may attribute to their belief in the conventional origin of all government,--the almost universal belief of the time among political philosophers,--the little account which they made of the historical facts that prove that the people of the United States were always one people, and that the States never existed as severally sovereign states.
The political philosophers of the present day do not generally accept the theory held by our fathers, and it has been shown in these pages to be unsound and incompatible with the essential nature of government.
The statesmen of the eighteenth century believed that the state is derived from the people individually, and held that sovereignty is created by the people in convention. The rights and powers of the state, they held, were made up of the rights held by individuals under the law of nature, and which the individuals surrendered to civil society on its formation. So they supposed that independent sovereign states might meet in convention, mutually agree to surrender a portion of their rights, organize their surrendered rights into a real government, and leave the convention shorn, at least, of a portion of their sovereignty. This doctrine crops out everywhere in the writings of the elder Adams, and is set forth with rare ability by Mr. Webster, in his great speech in the Senate against the State sovereignty doctrine of General Hayne and Mr. Calhoun, which won for him the honorable t.i.tle of Expounder of the Const.i.tution--and expound it he, no doubt, did in the sense of its framers. He boldly concedes that prior to the adoption of the const.i.tution, the people of the United States were severally sovereign states, but by the const.i.tution they were made one sovereign political community or people, and that the States, though retaining certain rights, have merged their several sovereignty in the Union.
The subtle mind of Mr. Calhoun, who did not hold that a state can originate in compact, proved to Mr. Webster that his theory could not stand; that, if the States went into the convention sovereign States, they came out of it sovereign States; and that the const.i.tution they formed could from the nature of the case be only a treaty, compact, or agreement between sovereigns. It could create an agency, but not a government. The sovereign States could only delegate the exercise of their sovereign powers, not the sovereign powers themselves. The States could agree to exercise certain specific powers of sovereignty only in common, but the force and vitality of the agreement depended on the States, parties to the agreement retaining respectively their sovereignty. Hence, he maintained that sovereignty, after as before the convention, vested in the States severally. Hence State sovereignty, and hence his doctrine that in all cases that cannot come properly before the Supreme Court of the United States for decision, each State is free to decide for itself, on which he based the right of nullification, or the State veto of acts of Congress whose const.i.tutionality the State denies. Mr. Calhoun was himself no secessionist, but he laid down the premises from which secession is the logical deduction; and large numbers of young men, among the most open, the most generous, and the most patriotic in the country, adopted his premises, without being aware of this fact any more than he himself was, and who have been behind none in their loyalty to the Union, and in their sacrifices to sustain it, in the late rebellion.
The formidable rebellion which is now happily suppressed, and which attempted to justify itself by the doctrine of State sovereignty, has thrown, in many minds, new light on the subject, and led them to re-examine the historical facts in the case from a different point of view, to see if Mr. Calhoun"s theory is not as unfounded as he had proved Mr. Webster"s theory to be. The facts in the case really sustain neither, and both failed to see it: Mr. Calhoun because he had purposes to accomplish which demanded State sovereignty, and Mr.
Webster because he examined them in the distorting medium of the theory or understanding of the statesmen of the eighteenth century. The civil war has vindicated the Union, and defeated the armed forces of the State sovereignty men; but it has not refuted their doctrine, and as far as it has had any effect, it has strengthened the tendency to consolidation or centralism.
But the philosophy, the theory of government, the understanding of the framers of the const.i.tution, must be considered, if the expression will be allowed, as obiter dicta, and be judged on their merits. What binds is the thing done, not the theory on which it was done, or on which the actors explained their work either to themselves or to others. Their political philosophy, or their political theory, may sometimes affect the phraseology they adopt, but forms no rule for interpreting their work. Their work was inspired by and accords with the historical facts in the case, and is authorized and explained by them. The American people were not made one people by the written const.i.tution, as Mr.
Jefferson, Mr. Madison, Mr. Webster, and so many others supposed, but were made so by the unwritten const.i.tution, born with and inherent in them.
CHAPTER XI.
THE CONSt.i.tUTION--CONTINUED.
Providence, or G.o.d operating through historical facts, const.i.tuted the American people one political or sovereign people, existing and acting in particular communities, organizations, called states. This one people organized as states, meet in convention, frame and ordain the const.i.tution of government, or inst.i.tute a general government in place of the Continental Congress; and the same people, in their respective State organizations, meet in convention in each State, and frame and ordain a particular government for the State individually, which, in union with the General government, const.i.tutes the complete and supreme government within the States, as the General government, in union with all the particular governments, const.i.tutes the complete and supreme government of the nation or whole country. This is clearly the view taken by Mr. Madison in his letter to Mr. Everett, when freed from his theory of the origin of government in compact.
The const.i.tution of the people as one people, and the distinction at the same time of this one people into particular States, precedes the convention, and is the unwritten const.i.tution, the Providential const.i.tution, of the American people or civil society, as distinguished from the const.i.tution of the government, which, whether general or particular, is the ordination of civil society itself. The unwritten const.i.tution is the creation or const.i.tution of the sovereign, and the sovereign providentially const.i.tuted const.i.tutes in turn the government, which is not sovereign, but is clothed with just so much and just so little authority as the sovereign wills or ordains.
The sovereign in the republican order is the organic people, or State, and is with us the United States, for with us the organic people exist only as organized into States united, which in their union form one compact and indissoluble whole. That is to say, the organic American people do not exist as a consolidated people or state; they exist only as organized into distinct but inseparable States. Each State is a living member of the one body, and derives its life from its union with the body, so that the American state is one body with many members; and the members, instead of being simply individuals, are States, or individuals organized into States. The body consists of many members, and is one body, because the members are all members of it, and members one of another. It does not exist as separate or distinct from the members, but exists in their solidarity or membership one of another.
There is no sovereign people or existence of the United States distinguishable from the people or existence of the particular States united. The people of the United States, the state called the United States, are the people of the particular States united. The solidarity of the members const.i.tutes the unity of the body. The difference between this view and Mr. Madison"s is, that while his view supposes the solidarity to be conventional, originating and existing in compact, or agreement, this supposes it to be real, living, and prior to the convention, as much the work of Providence as the existence in the human body of the living solidarity of its members. One law, one life, circulates through all the members, const.i.tuting them a living organism, binding them in living union, all to each and each to all.
Such is the sovereign people, and so far the original unwritten const.i.tution. The sovereign, in order to live and act, must have an organ through which he expresses his will. This organ under the American system, is primarily the Convention. The convention is the supreme political body, the concrete sovereign authority, and exercises practically the whole sovereign power of the people. The convention persists always, although not in permanent session. It can at any time be convened by the ordinary authority of the government, or, in its failure, by a plebiscitum.
Next follows the Government created and const.i.tuted by the convention.
The government is const.i.tuted in such manner, and has such and only such powers, as the convention ordains. The government has, in the strict sense, no political authority under the American system, which separates the government from the convention. All political questions proper, such as the elective franchise, eligibility, the const.i.tution of the several departments of government, as the legislative, the judicial, and the executive, changing, altering, or amending the const.i.tution of government, enlarging, or contracting its powers, in a word, all those questions that arise on which it is necessary to take the immediate orders of the sovereign, belong not to the government, but to the convention; and where the will of the sovereign is not sufficiently expressed in the const.i.tution, a new appeal to the convention is necessary, and may always be had. The const.i.tution of Great Britain makes no distinction between the convention and the government. Theoretically the const.i.tution of Great Britain is feudal, and there is, properly speaking, no British state; there are only the estates, king, lords, and commons, and these three estates const.i.tute the Parliament, which is held to be omnipotent; that is, has the plenitude of political sovereignty. The British Parliament, composed of the three estates, possesses in itself all the powers of the convention in the American const.i.tution, and is at once the convention and the government. The imperial const.i.tution of France recognizes no convention, but clothes the senate with certain political functions, which, in some respects, subjects theoretically the sovereign to his creature. The emperor confessedly holds his power by the grace of G.o.d and the will of the nation, which is a clear acknowledgment that the sovereignty vests in the French people as the French state; but the imperial const.i.tution, which is the const.i.tution of the government, not of the state, studies, while acknowledging the sovereignty of the people, to render it nugatory, by transferring it, under various subtle disguises, to the government, and practically to the emperor as chief of the government. The senate, the council of state, the legislative body, and the emperor, are all creatures of the French state, and have properly no political functions, and to give them such functions is to place the sovereign under his own subjects! The real aim of the imperial const.i.tution is to secure despotic power under the guise of republicanism. It leaves and is intended to leave the nation no way of practically a.s.serting its sovereignty but by either a revolution or a plebiscitum, and a plebiscitum is permissible only where there is no regular government.
The British const.i.tution is consistent with itself, but imposes no restriction on the power of the government. The French imperial const.i.tution is illogical, inconsistent with itself as well as with the free action of the nation. The American const.i.tution has all the advantages of both, and the disadvantages of neither. The convention is not the government like the British Parliament, nor a creature of the state like the French senate, but the sovereign state itself, in a practical form. By means of the convention the government is restricted to its delegated powers, and these, if found in practice either too great or too small, can be enlarged or contracted in a regular, orderly way, without resorting to a revolution or to a plebiscitum. Whatever political grievances there may be, there is always present the sovereign convention competent to redress them. The efficiency of power is thus secured without danger to liberty, and freedom without danger to power. The recognition of the convention, the real political sovereign of the country and its separation from and independence of the ordinary government, is one of the most striking features of the American const.i.tution.
The next thing to be noted, after the convention, is the const.i.tution by the convention of the government. This const.i.tution, as Mr. Madison well observes, divides the powers conceded by the convention to government between the General Government and the particular State governments. Strictly speaking, the government is one, and its powers only are divided and exercised by two sets of agents or ministries.
This division of the powers of government could never have been established by the convention if the American people had not been providentially const.i.tuted one people, existing and acting through particular State organizations. Here the unwritten const.i.tution, or the const.i.tution written in the people themselves, rendered practicable and dictated the written const.i.tution, or const.i.tution ordained by the convention and engrossed on parchment. It only expresses in the government the fact which pre-existed in the national organization and life.
This division of the powers of government is peculiar to the United States, and is an effective safeguard against both feudal disintegration and Roman centralism. Misled by their prejudices and peculiar interests, a portion of the people of the United States, pleading in their justification the theory of State sovereignty, attempted disintegration, secession, and national independence separate from that of the United States, but the central force of the const.i.tution was too strong for them to succeed. The unity of the nation was too strong to be effectually broken. No doubt the reaction against secession and disintegration will strengthen the tendency to centralism, but centralism can succeed no better than disintegration has succeeded because the General government has no subsistentia, no suppositum, to borrow a theological term, outside or independent of the States. The particular governments are stronger, if there be any difference, to protect the States against centralism than the General government is to protect the Union against disintegration; and after swinging for a time too far toward one extreme and then too far toward the other, the public mind will recover its equilibrium, and the government move on in its const.i.tutional path.
Republican Rome attempted to guard against excessive centralism by the tribunitial veto, or by the organization of a negative or obstructive power. Mr. Calhoun thought this admirable, and wished to effect the same end here, where it is secured by other, more effective, and less objectionable means, by a State veto on the acts of Congress, by a dual executive, and by subst.i.tuting concurrent for numerical majorities.
Imperial Rome gradually swept away the tribunitial veto, concentrated all power in the hands of the emperor, became completely centralized, and fell. The British const.i.tution seeks the same end by subst.i.tuting estates for the state, and establishing a mixed government, in which monarchy, aristocracy, and democracy temper, check, or balance each other; but practically the commons estate has become supreme, and the n.o.bility govern not in the house of lords, and can really influence public affairs only through the house of commons. The principle of the British const.i.tution is not the division of the powers of government, but the antagonism of estates, or rather of interests, trusting to the obstructive influence of that antagonism to preserve the government from pure centralism. Hence the study of the British statesman is to manage diverse and antagonistic parties and interests so as to gain the ability to act, which he can do only by intrigue, cajolery, bribery in one form or another, and corruption of every sort. The British government cannot be carried on by fair, honest, and honorable means, any more than could the Roman under the antagonism created by the tribunitial veto. The French tried the English system of organized antagonism in 1789, as a cure for the centralism introduced by Richelieu and Louis XIV., and again under the Restoration and Louis Philippe, and called it the system of const.i.tutional guarantees; but they could never manage it, and they have taken refuge in unmitigated centralism under Napoleon III., who, however well disposed, finds no means in the const.i.tution of the French nation of tempering it. The English system, called the const.i.tutional, and sometimes the parliamentary system, will not work in France, and indeed works really well nowhere.
The American system, sometimes called the Federal system, is not founded on antagonism of cla.s.ses, estates, or interests, and is in no sense a system of checks and balances. It needs and tolerates no obstructive forces. It does not pit section against section, the States severally against the General government, nor the General government against the State governments, and nothing is more hurtful than the attempt to explain it and work it on the principles of British const.i.tutionalism. The convention created no antagonistic powers; it simply divided the powers of government, and gave neither to the General government nor to the State governments all the powers of government, nor in any instance did it give to the two governments jurisdiction in the same matters. Hence each has its own sphere, in which it can move on without colliding with that of the other. Each is independent and complete in relation to its own work, incomplete and dependent on the other for the complete work of government.
The division of power is not between a NATIONAL government and State governments, but between a GENERAL government and particular governments. The General government, inasmuch as it extends to matters common to all the States, is usually called the Government of the United States, and sometimes the Federal government, to distinguish it from the particular or State governments, but without strict propriety; for the government of the United States, or the Federal government, means, in strictness, both the General government and the particular Governments, since neither is in itself the complete government of the country. The General government has authority within each of the States, and each of the State governments has authority in the Union.
The line between the Union and the States severally, is not precisely the line between the General government and the particular governments.
As, for instance, the General government lays direct taxes on the people of the States, and collects internal revenue within them; and the citizens of a particular State, and none others, are electors of President and Vice-President of the United States, and representatives in the lower house of Congress, while senators in Congress are elected by the State legislatures themselves.
The line that distinguishes the two governments is that which distinguishes the general relations and interests from the particular relations and interests of the people of the United States. These general relations and interests are placed under the General government, which, because its jurisdiction is coextensive with the Union, is called the Government of the United States; the particular relations and interests are placed under particular governments, which, because their jurisdiction is only coextensive, with the States respectively, are called State governments. The General government governs supremely all the people of the United States and Territories belonging to the Union, in all their general relations and interests, or relations and interests common alike to them all; the particular or State government governs supremely the people of a particular State, as Ma.s.sachusetts, New York, or New Jersey, in all that pertains to their particular or private rights, relations, and interests. The powers of each are equally sovereign, and neither are derived from the other.
The State governments are not subordinate to the General government, nor the General government to the State governments. They are co-ordinate governments, each standing on the same level, and deriving its powers from the same sovereign authority. In their respective spheres neither yields to the other. In relation to the matters within its jurisdiction, each government is independent and supreme in regard of the other, and subject only to the convention.
The powers of the General government are the power--
To lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the general welfare of the United States; to borrow money on the credit of the United States; to regulate commerce with foreign nations, among the several States, and with the Indian tribes; to establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; to coin money and regulate the value thereof, and fix the standard of weights and measures; to provide for the punishment of counterfeiting the securities and current coin of the United States; to establish post-offices and post-roads; to promote the progress of science and of the useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; to define and punish piracies and felonies committed on the high seas, and offences against the law of nations; to declare war, grant letters of marque and reprisal, and 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 of the land and naval forces; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; to provide for organizing, arming, and disciplining the militia, and of governing such part of them as may be employed in the service of the United States; to exercise exclusive legislation in all cases whatsoever over such district, not exceeding ten miles square, as may by cession of particular States and the acceptance of Congress, become the seat of the government of the United States, and to exercise a like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, a.r.s.enals, dock-yards, and other needful buildings; and to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this const.i.tution in the government of the United States, or in any department or office thereof.
In addition to these, the General government is clothed with the treaty-making power, and the whole charge of the foreign relations of the country; with power to admit new States into the Union; to dispose of and make all needful rules and regulations concerning the territory and all other property belonging to the United States; to declare, with certain restrictions, the punishment of treason, the const.i.tution itself defining what is treason against the United States; and to propose, or to call, on the application of the legislatures of two-thirds of all the states, a convention for proposing amendments to this const.i.tution; and is vested with supreme judicial power, original or appellate, in all cases of law and equity arising under this const.i.tution, the laws of the United States, and treaties made or to be made under their authority, in all cases affecting amba.s.sadors, other public ministers, and consuls, in all cases of admiralty and maritime jurisdiction, in all controversies to which the United States shall be a party, all controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State or the citizens thereof and foreign states, citizens, or subjects.
These, with what is incidental to them, and what is necessary and proper to carry them into effect, are all the positive powers with which the convention vests the General government, or government of the United States, as distinguished from the governments of the particular States; and these, with the exception of what relates to the district in which it has its seat, and places of forts, magazines, &c., are of a general nature, and restricted to the common relations and interests of the people, or at least to interests and relations which extend beyond the limits of a particular State. They are all powers that regard matters which extend beyond not only the individual citizen, but the individual State, and affect alike the relations and interests of all the States, or matters which cannot be disposed of by a State government without the exercise of extra-territorial jurisdiction.
They give the government no jurisdiction of questions which affect individuals or citizens only in their private and domestic relations which lie wholly within a particular State. The General government does not legislate concerning private rights, whether of persons or things, the tenure of real estate, marriage, dower, inheritance, wills, the transferrence or transmission of property, real or personal; it can charter no private corporations, out of the District of Columbia, for business, literary, scientific, or eleemosynary purposes, establish no schools, found no colleges or universities, and promote science and the useful arts only by securing to authors and inventors for a time the exclusive right to their writings and discoveries. The United States Bank was manifestly unconst.i.tutional, as probably are the present so-called national banks. The United States Bank was a private or particular corporation, and the present national banks are only corporations of the same sort, though organized under a general law.
The pretence that they are established to supply a national currency, does not save their const.i.tutionality, for the convention has not given the General government the power nor imposed on it the duty of furnishing a national currency. To coin money, and regulate the value thereof, is something very different from authorizing private companies to issue bank notes, on the basis of the public stocks held as private property, or even on what is called a specie basis. To claim the power under the general welfare clause would be a simple mockery of good sense. It is no more for the general welfare than any other successful private business. The private welfare of each is, no doubt, for the welfare of all, but not therefore is it the "general welfare," for what is private, particular in its nature, is not and cannot be general. To understand by general welfare that which is for the individual welfare of all or the greater number, would be to claim for the General government all the powers of government, and to deny that very division of powers which is the crowning merit of the American system. The general welfare, by the very force of the words themselves, means the common as distinguished from the private or individual welfare. The system of national banks may or may not be a good and desirable system, but it is difficult to understand the const.i.tutional power of the General government to establish it.
On the ground that its powers are general, not particular, the General government has no power to lay a protective tariff. It can lay a tariff for revenue, not for protection of home manufactures or home industry; for the interests fostered, even though indirectly advantageous to the whole people, are in their nature private or particular, not general interests, and chiefly interests of private corporations and capitalists. Their incidental or even consequential effects do not change their direct and essential nature. So with domestic slavery. Slavery comes under the head of private rights, whether regarded on the side of the master or on the side of the slave.
The right of a citizen to hold a slave, if a right at all, is the private right of property, and the right of the slave to his freedom is a private and personal right, and neither is placed under the safeguard of the General government, which has nowhere, unless in the District of Columbia and the places over which it has exclusive legislative power in all cases whatsoever, either the right to establish it or to abolish it, except perhaps under the war power, as a military necessity, an indemnity for the past, or a security for the future.
This applies to what are called Territories as well as to the States.