Page images
PDF
EPUB

evidence, whether derived from the laws, or from the adjudications of the judicial tribunals of the state, must furnish the rules and guides in the courts of the union in all cases, where the constitution, treaties, or laws of the United States do not interpose.

CHAPTER V.

Nature of the union established by the confederation, and of the union established by the constitution of the United States.-The different par ties to their several establishments and their different powers.

The several different states now composing the United States, as before observed, became on the declaralion of independence, each, sovereign and independent. There had subsisted between them, from the commencement of the revolutionary cortest with Great Britain, while yet colonies, a union of counsels, and a concert of measures, suggested and supported, only by a sense of common interest in a common cause. Although in all their counsels, and in all their acts, they styled themselves the United States, there had been no express or formal compact of union entered into between the several states, until the ratification of the articles of confederation, about two years after the declaration of independence. The confederation was a league or treaty of alliance between Sovereign and independent states, or in other words, nations. and to prevent any misconception of its nature, it was expressly declared by the second article, that "each state retains its Sovereignty, freedom, and independence."* Although it is expressly declared to be a firm league of friendship, yet its firmness, or binding force depended on the good faith only, of each of the states, the sovereign parties, agreeable to the law of nations by which it was governed, and by which it was necessarily to be interpreted; not by the rules of the civil

*See articles of confederation, No. 1, in the appendix.

state; for it was not in fact a civil, .but a political institution. It presents a case in which each party is for itself the sole interpreter of the stipulations, the sole judge of its obligations; and in the event of a violation by either, the ultimate remedy is a resort to war, to the law of force, the only final arbiter admitted by the law of nations between sovereign states. was a union of the states, not of the people of the several states. The people as citizens, owed obedience to their respective state governments only. They were not citizens of the United States, but of their respective states. Upon them the acts of congress had no binding force, as such; they were a mere dead letter, until animated by state authority. The union was therefore a federal, not a national union; and we shall presently see that the parties contracting had not the power of forming any other, nor could any other exist while they retained their character of independent sovereigns. The congress organized by the confederation, was indeed called a government, and was denominated the government of the United States, but more familiarly the federal government; although it wanted the essential requisites of a real government, an executive and judicial power.

On the other hand, it was clearly intended by the framers of the constitution, and was so understood by the parties ratifying that instrument, that the union to be formed should be, not a federal, but a national union, under a national government, vested with all the powers necessary to form a real and efficient government, legislative, executive, and judicial; with full power in that government to carry the laws into effect by acting immediately upon the people, the individual citizens throughout the United States, and that independent of the state authorities. Agreeable to this intention, the people, by the final ratification of the constitution, were brought into a national union,* and acquired a national character, that of

* When the question of the constitution was depending, those who were in favor of its adoption, assumed the name of federalists, and bestowed on the party opposed, the name of anti-federalists; intending thereby, as is well remembered, to intimate that the opposers of the constitution were opposed to any union of the states; but the fact was not so. That party were in favor of continuing the existing federal system, while the other were for

citizens of the United States, in which only they have since been known, and still are known to all foreign nations.

[ocr errors]

Such was the union intended by the general convention, who framed the constitution, and fully explains the sense of the expression in their report to congress accompanying the draught of that instrument, the consolidation of our union." "In all our deliberations," say they, "we kept steadily in our view, that which appears to us the greatest interest of every true American, the consolidation of our union, in which is involved our prosperity, felicity, safety, and perhaps our national existence." This consolidation, it was intended, should be effected by uniting the people of all the states in a national character, and national sentiments, under a general government for all purposes deemed truly national, but still preserving to all, the character and rights of citizens of their respective states. The same idea of a national union is conveyed, though differently expressed, in the introductory clause of the constitution. "We, the people of the United States, in order to form a more perfect union, establish justice, secure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America." Indeed we have the most convincing proof in the history of the confederation and its failure, and in the history of the formation and establishment of the constitution, that the great end in view, was, instead of a federal, to form a national union, without which all were convinced, by a long and disastrous experiment, no efficient national government could be established. And we may be further convinced, if any thing further can be necessary, from an enquiry, who were the real efficient parties, that finally estab

abolishing it, in favor of the national union proposed by the constitution. The parties ought in propriety to have exchanged names. The term "federal," has been handed down and is familiarly applied to the present constitution and government in this reversed sense; and it is often not a little amusing to find a writer or speaker, while earnestly contending that the union is national, and not federal, in the same line or the same breath, applying to the goverument the term federal, as a proper and distinctive appellation.

lished the several compacts, that of the confederation, and that of the constitution of the United States.

Who were the parties to the act of confederation, there has never been raised a doubt. It is conceded by all, that the parties to this compact were the several states acting in their capacity of independent sovereigns. But it has been made an important question who were the original and efficient parties to the national compact, the constitution of the United States. Whether the several states acting in the capacity of independent sovereigns, but each acting through the people of their states respectively ;—whether the people of all the states acting as an aggregate political community ;—or whether the constitution derives all its authority from the people of each state acting separately in their capacity of primitive sovereignty within their own limits, and in concurrence with the people of the several states, acting separately, and in the same primitive capacity. The history of that transaction proves that the people of all the states did not act as one aggregate political community. Nor did the states by themselves, or by the people, act in the character of independent sovereigns in the ratification of that instrument. The people of the several states, by their representatives in the state conventions acted separately for themselves, and their respective communities. They acted, however, in no instance in the character of that sovereignty, which they had intrusted to their respective state governments as organized. They acted in the character of that primitive and ultimate sovereignty, in virtue of which they had formed their state constitutions, and not as servants or agents of their respective governments. In this manner the constitution of the United States was ratified by the people of each state in concurrence with the people of all the states, and thus it became a mutual compact between all, binding upon all, and upon their respective state governments. The people were, in fact, the original and only efficient parties in the character, and the manner described, and the state governments became their authorized agents so far as they were empowered by their several state constitutions and the constitution of the United States. The governments of the several states, by which we are to understand the functionaries of

« PreviousContinue »