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force. For the will of the people, as declared in the Constitution, is the final law; and the will of the legislature is only law when it is in harmony with, or at least is not opposed to, that controlling instrument which governs the legislative body equally with the private citizen.
i See Chapter VII. post.
* CHAPTER II.
THE CONSTITUTION OF THE UNITED STATES.
The government of the United States is the existing representative of the national government which has always in some form existed over the American States. Before the Revolution, the powers of government, which were exercised over all the colonies in common, were so exercised as pertaining either to the Crown of Great Britain or to the Parliament; but the extent of those powers, and how far vested in the Crown and how far in the Parliament, were questions never definitely settled, and which constituted subjects of dispute between the mother country and the people of the colonies, finally resulting in hostilities. That the power over peace and war, the general direction of commercial intercourse with other nations, and the general control of such subjects as fall within the province of international law, were vested in the home government, and that the colonies were not, therefore, sovereign States in the full and proper sense of that term, were propositions never seriously disputed in America, and indeed were often formally conceded; and the disputes related to questions as to what were or were not matters of internal regulation, the control of which the colonists insisted should be left exclusively to themselves.
Besides the tie uniting the several colonies through the Crown of Great Britain, there had always been a strong tendency to a more intimate and voluntary union, whenever circumstances of danger threatened them; and this tendency led to the New England Confederacy of 1643, to the temporary Congress of 1690, to the plan of union agreed upon in Convention of 1754, but rejected by the Colonies as well as the Crown, to the Stamp Act Con
11 Pitkin's Hist. U. S. c. 6; Life of 1765; Ramsay's Revolution in and Works of John Adams, Vol. 1. South Carolina, pp. 6-11; 5 Banpp. 122, 161; Vol. II. p. 311; Works croft's U. S. c. 18; 1 Webster's of Jefferson, Vol. IX. p. 294; 2 Works, 128; Von Holst, Const. Hist. Marshall's Washington, c. 2; Decla c. 1; Story on Const. § 183 et seq. ration of Rights by Colonial Congress
gress of 1765, and finally to the Continental Congress of 1774. When the difficulties with Great Britain culminated in actual war, the Congress of 1775 assumed to itself those powers of external control which before had been conceded to the Crown or to the * Parliament, together with such other [*6] powers of sovereignty as it seemed essential a general government should exercise, and thus became the national government of the United Colonies. By this body, war was conducted, independence declared, treaties formed, and admiralty jurisdiction exercised. It is evident, therefore, that the States, though declared to be “sovereign and independent,” were never strictly so in their individual character, but that they were always, in respect to the higher powers of sovereignty, subject to the control of a central authority, and were never separately known as members of the family of nations. The Declaration
I “All the country now possessed purposes, and at the same time proby the United States was (prior to the viding for their more domestic conRevolution) a part of the dominions cerns by State conventions and other appertaining to the Crown of Great temporary arrangements. From the Britain. Every acre of land in this Crown of Great Britain the sovercountry was then held, mediately or eignty of their country passed to the immediately, by grants from that people of it; and it was not then an Crown. All the people of this country uncommon opinion that the unapprowere then subjects of the King of priated lands which belonged to the Great Britain, and owed allegiance to Crown passed, not to the people of him; and all the civil authority then the colony or State within whose existing or exercised here flowed from limits they were situated, but to the the head of the British empire. They whole people. On whatever princiwere in a strict sense fellow-subjects, ples this opinion rested, it did not give and in a variety of respects one peo- way to the other, and thirteen soverple. When the Revolution com- eignties were considered as emerged menced, the patriots did not assert from the principles of the Revolution, that only the same affinity and social combined with local convenience and connection subsisted between the peo- considerations; the people, nevertheple of the colonies, which subsisted less, continued to consider themselves, between the people of Gaul, Britain, in a national point of view, as one and Spain while Roman provinces, people; and they continued without namely, only that affinity and social interruption to manage their national connection which result from the mere concerns accordingly. Afterwards, circumstance of being governed by in the hurry of the war, and in the one prince ; different ideas prevailed, warmth of mutual confidence, they and gave occasion to the Congress of made a confederation of the States 1774 and 1775.
the basis of a general government. " The Revolution, or rather the Experience disappointed the expectaDeclaration of Independence, found tions they had formed from it; and the people already united for general then the people, in their collective
of Independence made them sovereign and independent States, by altogether abolishing the foreign jurisdiction, and substituting a national government of their own creation.
But while national powers were assumed by and con[*7] ceded to the Congress of 1775–76, that body was never
theless strictly revolutionary in its character, and, like all revolutionary bodies, its authority was undefined, and could be limited only, first, by instructions to individual delegates by the States choosing them ; second, by the will of the Congress; and third, by the power to enforce that will. As in the latter particular it was essentially feeble, the necessity for a clear specification of powers which should be exercised by the national government became speedily apparent, and led to the adoption of the Articles of Confederation. But those articles did not concede the full measure of power essential to the efficiency of a national government at home, the enforcement of respect abroad, or the preservation of the public faith or public credit; and the difficulties experienced induced the election of delegates to the Constitutional Convention held in 1787, by which a constitution was formed which was put into operation in 1789. As much larger powers were vested by this instrument in the general government than had ever been exercised in this country, by either the Crown, the Parliament, or the Revolutionary Congress, and larger than those conceded to the Congress under the Articles of Confederation, the assent of the people of the several States was
essential to its acceptance, and a provision was inserted [*8] in the Constitution that the ratification * of the conven
tions of nine States should be sufficient for the establishment of the Constitution between the States so ratifying the
In fact, the Constitution was ratified by conventions of delegates chosen by the people in eleven of the States, before the new government was organized under it; and the remaining two,
capacity, established the present Con c. 1, presents the same view clearly stitution.” Per Jay, Ch. J., in Chis- and fully. holm v. Georgia, 2 Dall. 470. See this 1 See remarks of Iredell, J., in point forcibly put and elaborated by Penhallow v. Doane's Adm'r, 3 Dall. Mr. A. J. Dallas, in his Life and 91, and of Blair, J., in the same case, Writings, by G. M. Dallas, 200–207. p. 111. The true doctrine on this Also in Texas v. White, 7 Wall. 724. subject is very clearly explained by Professor Von Holst, in his Constitu- Chase, J., in Ware v. Hylton, 3 Dall. tional Ilistory of the United States, 231.
North Carolina and Rhode Island, by their refusal to accept, and by the action of the others in proceeding separately, were excluded altogether from that national jurisdiction which before had embraced them. This exclusion was not warranted by any thing contained in the Articles of Confederation, which purported to be articles of "perpetual union;" and the action of the eleven States in making radical revision of the Constitution, and excluding their associates for refusal to assent, was really revolutionary in character,' and only to be defended on the same ground of . necessity on which all revolutionary action is justified, and which in this case was the absolute need, fully demonstrated by experience, of a more efficient general government.2
1 Mr. Van Buren has said of it other States should be reduced to the that it was “ an heroic, though per same standard. A compact between haps a lawless act.” Political Parties, independent sovereigns, founded on
acts of legislative authority, can pre2 “ Two questions of a very delicate tend to do higher validity than a nature present themselves on this oc- league or treaty between the parties. casion: 1. On what principle the con It is an established doctrine on the federation, which stands in the form subject of treaties, that all of the of a solemn compact among the articles are mutually conditions of States, can be superseded without the each other; that a breach of any one unanimous consent of the parties to article is a breach of the whole it; 2. What relation is to subsist treaty; and that a breach committed between the nine or more States, rat- by either of the parties absolves the ifying the Constitution, and the re. others, and authorizes them, if they maining few who do not become please, to pronounce the compact vioparties to it. The first question is lated and void. Should it unhappily answered at once by recurring to the be necessary to appeal to these deliabsolute necessity of the case ; to cate truths for a justification for disthe great principle of self-preserva- pensing with the consent of particular tion; to the transcendent law of States to a dissolution of the federal nature and of nature's God, which pact, will not the complaining parties declares that the safety and happi- find it a difficult task to answer the ness of society are the objects at multiplied and important infractions which all political institutions aim, with which they may be confronted ? and to which all such institutions The time has been when it was inmust be sacrificed. Perhaps, also, an cumbent on us all to veil the ideas answer may be found without search- which this paragraph exhibits. The ing beyond the principles of the com scene is now changed, and with it the pact itself. It has been heretofore part which the same motives dictate. noted, among the defects of the con The second question is not less delifederation, that in many of the States cate, and the flattering prospect of its it had received no higher sanction being merely hypothetical forbids an than a mere legislative ratification. over-curious discussion of it. It is The principle of reciprocality seems one of those cases which must be left to require that its obligation on the to provide for itself. In general it