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came into the Union, they agreed, for an indefinite time, to suspend the exercise of some of these powers, and to entrust them to a common agent—the Government of the United States; and that government thus became supreme and sovereign in its legitimate limits. In other words, obedience became due to it, as to any other
supreme power, and the States had the right to pledge our obedience to it.
Chancellor Harper says, in the State vs. Hunt & McMeekin, that there may be a confederacy having many characteristics of a consolidated State, and he intimates that it would be queer enough if, in our case, the Union should constitute neither or both. “The essential character of a confederacy,” he proceeds to say, “is that the States remain sovereign; and the test of that sovereignty would be to inquire whether, if one State should think proper to withdraw from the Confederacy, all citizens and constituted authorities within its territorial limits would be legally bound to obey and sustain that act, or would owe a higher obedience to some other
power. If such higher obedience would be due elsewhere, the State (improperly so called) would be in no degree sovereign-it would be but a department of a larger consolidated State. If the State would be thus entitled, in the last resort, to command the obedience of its citizens and constituted authorities, it is a perfect sovereignty."
A nation contracting with another not to exercise certain sovereign powers, does not thereby lose its nationality or independence, as many treaties show; and we know of no power which the State may, for special purposes, relinquish, which she may not resume, if she has been defeated by bad faith in those objects, or if the powers relinquished for certain purposes are perverted to others that endanger her existence. Vattel says (B. 1, ch. 1, 54): “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 engagement into which he has very willingly entered.” Alexander Hamilton is the only statesman, we remember, who ever denied the sovereignty of the States under the confederation, and at the time they adopted the present Constitution, and who had ever read the articles. The wish was, no doubt, father to the thought with him, for Mr. Madison has furnished us with his scheme of government, which he withheld from the convention, because he well knew it would have met with few or no supporters beyond his own little party. This scheme was to render the States mere corporations, or departments of one great empire, over which he would have placed an executive similar to that of Great Britain, and the States, like the counties in England, would have been honored with lieutenants, the favorites of majesty. This party never ceased in their endeavors to obtain by construction what was denied by the States in convention.
A fact deserves insight which we do not rememember ever seeing noticed.
On the 6th August, 1787, when Mr. Rutledge reported the first draught of the Constitution, the preamble began with, “We, the people of the States of New Hampshire, Massachusetts,” &c.—naming thirteen States. We have no evidence of any discussion ever occuring on the preamble. It seems to have met with the general approbation. It became doubtful, however, before the instrument was finally agreed upon, whether all the States named would assent to the new Constitution, and only nine were, therefore, required to establish it. On the 15th September, all amendments having been proposed and discussed, it was ordered to be engrossed, as amended, without one word having been said about the preamble. On the 17th, it was returned as engrossed, the preamble being changed to “We, the people of the United States;” the United States being a generic number, was placed instead of the States severally, it then not being known which States would ratify. The change was honestly made to meet the contingency, and we cannot presume that it was ever supposed, much less intended, to effect a change, a most important and vital change, in the meaning and character of the instrument.
The Constitution can only operate by means of government, and cannot be either enforced or disregarded by the people, as people. The Government, therefore, may be properly called the constitutional sovereign power of the State, and that power is derived from the people, and is for their benefit. But a thing derived is drawn from, conveyed or transferred, and power conveyed by the people and transferred to their trustees cannot still remain vested and resident in them. The Constitution is the chart by which the Government is to move, and thus the sovereign, as well as the popular will, is checked and controlled, and the great machine of society is made to move with regularity and safety to all. But for these checks, we should stand between Charybdis and Scylla. We confess we dread the one as much as the other.
No man has done more to mislead the mind of the American bar, on this subject, than Judge Tucker, of Virginia. His Notes and Appendix to Blackstone, though very good on constitutional construction and the powers of the Government, are full of Rousseau's and other Gallic ideas, and he adopts the idea of the social compact as the basis of government, and, as a consequence, the sovereignty of the people. Judge Tucker wrote soon after, and under the full influence of, the French Revolution, and continually relies on the authority of Rousseau and Tom Paine. It is well known to what an extent French opinions and French feeling once prevailed with the best people of our country. It was a sort of moral small pox, that has left its mark to this day, on more, we fear, than the face of things. Judge Tucker candidly admits that, in the use of the word sovereignty, he differs from most political writers. Of course, he preferred the authority of Rousseau and Tom Paine to that of Sidney, Lock, Real, Montesquieu, Vattel and Grotius. The Judge, too, falls into the miserable political cant of calling officers the servants of the people (2 Tucker's Blac., 146). The effect has been to produce throughout our country scores of those political menials who are willing to do any dirty work to obtain and retain certain places, and already our political household begins to exhibit all those peculiar virtues for which “my man John” has ever been distinguished, and the political larder and wardrobe and store rooms tell awful tales of trea
sure trove and spoils divided. And Taylor of Caroline remarks, in his Arator, that Mr. Jefferson suffered under this French disease, and communicated some of it to the Declaration of Indepence and to his Notes on Virginia. Though a sound man on most political questions, who did much for correct principles and putting down bad ones, Jefferson always had a weakness towards popular applause. Hence he is often quoted on all sides, and was often too ready to create sovereigns of Saussage-venders and Knife-grinders.
Judge Tucker, with the usual inaccuracy on this subject, first says that sovereignty resides in the people, and then proceeds to show how some sovereign powers have been distributed to the State Governments and others to the General Government. This reminds us of the old song of the boys, who a sliding went—"they all got drowned, the rest they ran away.” Besides, in Note B. of his Appendix, forgetting his theory, he speaks of the people resuming, in certain contingencies, the sovereignty which they had delegated by the Constitution to their agents or trustees; and he admits that an attempt on the part of the people to change the Constitution in
any other manner than that the Constitution prescribes, or, he might have added, with the consent of Government, is a subversion of the foundation of its authority.
We know of no people now in existence, where it might be truly said that sovereignty resides in the people, unless it can be so said of the inhabitants of St. Marino, that duodecimo republic, perched upon its inaccessible cliffs.
Mr. Mosely, in his Political Elements, says: “But assuming, for the present that, in accordance with the doctrines of the jurisprudents, the will and opinion of the people is that from which the State derives its power, the question arises, how far the people has delegated its authority to the State, and, if so, how far it is precluded from interfering in matters which lie within its particular jurisdiction ? Has the sovereign power passed to the law and to the State, or does it still remain in the people ? According to these authorities, it would appear that the sovereignty of the State is above the sovereignty of the people—that the people has entirely delegated its power to the State. The question depends a
good deal on this, whether the State is the officer, or the mere agent or servant of the people. The great difference between an officer and a mere agent or servant is this—that the former, when once appointed, is bound to act, not according to the will and wishes of the persons who appoints him, but according to the course of law, the custom and practice of his office, and his own discretion; whilst the latter must act according to the will and wishes of him that appoints him. To hold that the State were the mere servant of the public, were, as elsewhere observed, to say that the government of this country was an anarchy; for whether there be no government at all, or there be one that is the mere blind agent or conduit pipe for carrying out the will of the people, is the same thing."
Mr. Guizot appears to us to be the only continental writer who seems to have correct, or even respectable views, in relation to a representative government. On the subject of the sovereignty of the people, he proceeds to show that there is a fundamental difference between the principle of representative government and that of democratic government.
“No one,” he says,
6 has ever understood the sovereignty of the people to mean that, after having consulted all opinions and all wills, the opinion and will of the greatest number constituted the law, but that the minority would be free to disobey that which had been decided in opposition to its opinion and will. And yet this would be the necessary consequence of the pretended right attributed to each individual of being governed by such laws as have received his individual assent. The absurdity of this consequence has not always induced its adherents to abandon the principle, but it has always obliged them to violate it. The sovereignty of the people is contradicted at the outset, by its being resolved into the empire of the majority over the minority. It is almost ridiculous to say that the minority may retire from the majority; this would be to keep society continually on the brink of dissolution. On every question, the majority and the minority would disagree, and if all the successive minorities should retire, society would very soon exist no longer. The sovereignty of the people, then, must necessarily be reduced to the sovereignty of the majority only. When thus reduced,