Their ideas were in entire accord with those of Vattel, who, in his chapter "Of Nations or Sovereign States," writes, "Every nation that governs itself, under what form soever, without any dependence on foreign power, is a sovereign state."71
In another part of the same chapter he gives a lucid statement of the nature of a confederate republic, such as ours was designed to be. He says:
"Several sovereign and independent states may unite themselves together by a perpetual confederacy, without each in particular ceasing to be a perfect state. They will form together a federal republic: the deliberations in common will offer no violence to the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent, when he is obliged to fulfill the engagements into which he has very willingly entered."72
What this celebrated author means here by a person, is explained by a subsequent pa.s.sage: "The law of nations is the law of sovereigns; states free and independent are moral persons."73
Footnote 60: (return) "Principes du Droit Politique," chap. v, section I; also, chap. vii, section 1.
Footnote 61: (return) Ibid., chap. vii, section 12.
Footnote 62: (return) "Rebellion Record," vol. i, Doc.u.ments, p. 211.
Footnote 63: (return) Elliott"s "Debates," vol. iii, p. 114, edition of 1836.
Footnote 64: (return) "Federalist," No. xl.
Footnote 65: (return) Ibid, No. lx.x.xi.
Footnote 66: (return) See Elliott"s "Debates," vol. v, p. 266.
Footnote 67: (return) Ibid., vol. ii, p. 443.
Footnote 68: (return) See "Life of Gouverneur Morris," vol. iii, p. 193.
Footnote 69: (return) See "Writings of John Adams," vol. vii, letter of Roger Sherman.
Footnote 70: (return) See Eliott"s "Debates," vol. ii, p. 197.
Footnote 71: (return) "Law of Nations," Book I, chap. i, section 4.
Footnote 72: (return) Ibid., section 10.
Footnote 73: (return) Ibid., section 12.
[pg 146]
CHAPTER IX.
The same Subject continued.-The Tenth Amendment.-Fallacies exposed.-"Const.i.tution," "Government," and "People" distinguished from each other.-Theories refuted by Facts.-Characteristics of Sovereignty.-Sovereignty identified.-Never thrown away.
If any lingering doubt could have existed as to the reservation of their entire sovereignty by the people of the respective States, when they organized the Federal Union, it would have been removed by the adoption of the tenth amendment to the Const.i.tution, which was not only one of the amendments proposed by various States when ratifying that instrument, but the particular one in which they substantially agreed, and upon which they most urgently insisted. Indeed, it is quite certain that the Const.i.tution would never have received the a.s.sent and ratification of Ma.s.sachusetts, New Hampshire, New York, North Carolina, and perhaps other States, but for a well-grounded a.s.surance that the substance of this amendment would be adopted as soon as the requisite formalities could be complied with. That amendment is in these words:
"The powers not delegated to the United States by the Const.i.tution nor prohibited by it to the States are reserved to the States respectively, or to the people."
The full meaning of this article may not be as clear to us as it was to the men of that period, on account of the confusion of ideas by which the term "people"-plain enough to them-has since been obscured, and also the ambiguity attendant upon the use of the little conjunction or, which has been said to be the most equivocal word in our language, and for that reason has been excluded from indictments in the English courts. The true intent and meaning of the provision, however, may be ascertained from an examination and comparison of the terms in which it was expressed by the various States which proposed it, and whose ideas it was intended to embody.
Ma.s.sachusetts and New Hampshire, in their ordinances of [pg 147] ratification, expressing the opinion "that certain amendments and alterations in the said Const.i.tution would remove the fears and quiet the apprehensions of many of the good people of this Commonwealth [State (New Hampshire)], and more effectually guard against an undue administration of the Federal Government," each recommended several such amendments, putting this at the head in the following form:
"That it be explicitly declared that all powers not expressly delegated by the aforesaid Const.i.tution are reserved to the several States, to be by them exercised."
Of course, those stanch republican communities meant the people of the States-not their governments, as something distinct from their people.
New York expressed herself as follows:
"That the powers of government may be rea.s.sumed by the people whenever it shall become necessary to their happiness; that every power, jurisdiction, and right, which is not by the said Const.i.tution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the people of the several States, or to their respective State governments, to whom they may have granted the same; and that those clauses in the said Const.i.tution, which declare that Congress shall not have or exercise certain powers, do not imply that Congress is ent.i.tled to any powers not given by the said Const.i.tution; but such clauses are to be construed either as exceptions to certain specified powers or as inserted merely for greater caution."
South Carolina expressed the idea thus:
"This Convention doth also declare that no section or paragraph of the said Const.i.tution warrants a construction that the States do not retain every power not expressly relinquished by them and vested in the General Government of the Union."
North Carolina proposed it in these terms:
"Each State in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Const.i.tution delegated to the Congress of the United States or to the departments of the General Government."
[pg 148]
Rhode Island gave in her long-withheld a.s.sent to the Const.i.tution, "in full confidence" that certain proposed amendments would be adopted, the first of which was expressed in these words:
"That Congress shall guarantee to each State its SOVEREIGNTY, freedom, and independence, and every power, jurisdiction, and right, which is not by this Const.i.tution expressly delegated to the United States."
This was in May, 1790, when nearly three years had been given to discussion and explanation of the new Government by its founders and others, when it had been in actual operation for more than a year, and when there was every advantage for a clear understanding of its nature and principles. Under such circ.u.mstances, and in the "full confidence" that this language expressed its meaning and intent, the people of Rhode Island signified their "accession" to the "Confederate Republic" of the States already united.
No objection was made from any quarter to the principle a.s.serted in these various forms; or to the amendment in which it was finally expressed, although many thought it unnecessary, as being merely declaratory of what would have been sufficiently obvious without it-that the functions of the Government of the United States were strictly limited to the exercise of such powers as were expressly delegated, and that the people of the several States retained all others.
Is it compatible with reason to suppose that people so chary of the delegation of specific powers or functions could have meant to surrender or transfer the very basis and origin of all power-their inherent sovereignty-and this, not by express grant, but by implication?
Mr. Everett, following, whether consciously or not, in the line of Mr. Webster"s ill-considered objection to the term "compact," takes exception to the sovereignty of the States on the ground that "the word "sovereignty" does not occur" in the Const.i.tution. He admits that the States were sovereign under the Articles of Confederation. How could they relinquish or be deprived of their sovereignty without even a mention [pg 149] of it-when the tenth amendment confronts us with the declaration that nothing was surrendered by implication-that everything was reserved unless expressly delegated to the United States or prohibited to the States? Here is an attribute which they certainly possessed-which n.o.body denies, or can deny, that they did possess-and of which Mr. Everett says no mention is made in the Const.i.tution. In what conceivable way, then, was it lost or alienated?
Much has been said of the "prohibition" of the exercise by the States of certain functions of sovereignty; such as, making treaties, declaring war, coining money, etc. This is only a part of the general compact, by which the contracting parties covenant, one with another, to abstain from the separate exercise of certain powers, which they agree to intrust to the management and control of the union or general agency of the parties a.s.sociated. It is not a prohibition imposed upon them from without, or from above, by any external or superior power, but is self-imposed by their free consent. The case is strictly a.n.a.logous to that of individuals forming a mercantile or manufacturing copartnership, who voluntarily agree to refrain, as individuals, from engaging in other pursuits or speculations, from lending their individual credit, or from the exercise of any other right of a citizen, which they may think proper to subject to the consent, or intrust to the management of the firm.
The prohibitory clauses of the Const.i.tution referred to are not at all a denial of the full sovereignty of the States, but are merely an agreement among them to exercise certain powers of sovereignty in concert, and not separately and apart.
There is one other provision of the Const.i.tution, which is generally adduced by the friends of centralism as antagonistic to State sovereignty. This is found in the second clause of the sixth article, as follows:
"This Const.i.tution, 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, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Const.i.tution or laws of any State to the contrary notwithstanding."
[pg 150]
This enunciation of a principle, which, even if it had not been expressly declared, would have been a necessary deduction from the acceptance of the Const.i.tution itself, has been magnified and perverted into a meaning and purpose entirely foreign to that which plain interpretation is sufficient to discern. Mr. Motley thus dilates on the subject:
"Could language be more imperial? Could the claim to State "sovereignty" be more completely disposed of at a word? How can that be sovereign, acknowledging no superior, supreme, which has voluntarily accepted a supreme law from something which it acknowledges as superior?"74
The mistake which Mr. Motley-like other writers of the same school-makes is one which is disposed of by a very simple correction. The States, which ordained and established the Const.i.tution, accepted nothing besides what they themselves prescribed. They acknowledged no superior. The supremacy was both in degree and extent only that which was delegated by the States to their common agent.
There are some other considerations which may conduce to a clearer understanding of this supremacy of the Const.i.tution and the laws made in pursuance thereof:
1. In the first place, it must be remembered that, when the Federal Const.i.tution was formed, each then existing State already had its own Const.i.tution and code of statute laws. It was, no doubt, primarily with reference to these that the provision was inserted, and not in the expectation of future conflicts or discrepancies. It is in this light alone that Mr. Madison considers it in explaining and vindicating it in the "Federalist."75
2. Again, it is to be observed that the supremacy accorded to the general laws of the United States is expressly limited to those enacted in conformity with the Const.i.tution, or, to use the exact language, "made in pursuance thereof." Mr. Hamilton, in another chapter of the "Federalist," calls particular attention to this, saying (and the italics are all his own) "that the laws of the Confederacy, as to the enumerated and legitimate objects [pg 151] of its jurisdiction, will become the supreme law of the land," and that the State functionaries will cooperate in their observance and enforcement with the General Government, "as far as its just and const.i.tutional authority extends."76