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CHAPTER XIV.

THE TESTIMONY OF THE CONSTITUTION.

E shall hereafter gradually see what I now assume, that in the republican form of government, sovereignty, according to its nature, controls every person and thing within its territory, and is itself above all control; that it is indivisible and inalienable; that it does in nowise consist of the rights and powers it grants and delegates; that while it is the right to govern, it is not the government, -this being the exercise of sovereignty through agencies and instruments; that sovereignty is predicable only of will; that political will can only exist and be exercised in and by an organized community of people; that hence each state must be sovereign for itself, i. e. have the absolute right of self-government in all things; that by their wills the states made "the constitution of the united [or associated] states;" that in so doing they federated; that entirely intact their said wills must remain to govern (each itself locally, and they themselves generally), and to amend their constitution if they wish; and, finally, that, in all respects, the union is an association of sovereigns.

I shall now show that the federal instrument fully proves this theory, and contains nothing against it.

"What does it say of itself?"-In his speech of 1833, Mr. Webster, while conceding that the constitution was no more than "a deed drawn but not executed" till it was ratified by the states, said: "The question whether the constitution is a compact between states, is one which must be mainly argued from the instrument itself." He then asks, "What does it say of itself? What does it purport to be? Does it style itself a league, confederacy, or compact between sovereign states?" And answers, "Certainly not; but it declares itself a constitution." This advances us not a step, but leaves the question still before us: What is the constitution? Let us then adopt his suggestion, and ask the "deed" what it has to say of itself, taking care to keep out of his sophistical clouds.

The Testimony of the Title and Preamble. The title is "The Constitution of the United States," and the preamble says: "We,

Who states."

the people of the united states, . . . do ordain and establish this constitution for the united states of America." Whose constitution, then, is it? The title answers, "the constitution of the * states." is it for? The preamble answers, "this constitution for the The states, then, are the important subjects of these sentences, while the word "united "—meaning associated—is a mere adjective. These phrases obviously refer to the pre-existent states, united by the pact. It was only as such bodies that "the people" could become parties to the constitution, for each individual citizen was a member of the state, and had no right whatever to act politically, except in such body and as such member.

Again, "people of" and "constitution of," like "government of,” "treasury of," "army and navy of," and the like phrases throughout the instrument, are possessive phrases, necessarily implying that the political entities mentioned, belonged to "united states," not united people; which is literally the fact, and which was the understanding of the fathers. We are then compelled to say that the owners of these things, are so many states; that each must have the mind and will of an owner; and that the phrase "united states" can but mean pre-existent communities, who have conjoined themselves in league.

And the repeated use, in the said pact, of the phrase "union of states" conveys the same idea [Art. I., § 2; Art. IV., §§ 3, 4]. Nay, more, the states referred to in the preamble, must be those which the second article of the first federal pact declared to be sovereign, and which must have remained so, in and through the very act and moment of forming the more perfect union," described and "established" in the second and present federal pact.

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We find, then, that the title and preamble of the constitution, illustrated by history, conclusively show a union of distinct commonwealths, coequal, and of course each for itself sovereign. I shall now proceed to show that all the instrument consists with these views, and proves itself to be a fœdus of absolute sovereignties.

The "Deed" names and recognizes the States. - Art. I., § 1, declares that "representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers." The article then provides for a numbering and apportionment within three years, and decennial repetitions of the same, and continues as follows: "The number of representatives shall not exceed one for every 30,000, but each state shall have at least one representative; and until such enumeration shall be made, the state of New Hampshire shall be entitled to choose 3, Massachusetts 8, Rhode Island 1, Connecticut 5, New York 6, New Jersey 4, Pennsylvania 8, Delaware 1, Maryland 6, Virginia 10, North Caro

lina 5, South Carolina 5, and Georgia 3. When vacancies happen in the representation from any state, the executive authority thereof shall issue writs of election to fill such vacancies."

Here are named the political bodies which are alike "the united states" and "the people of the united states," for "the people" are the states, and the states are "the people." This section shows preexistent historical bodies, with their respective names, geographies, organisms and independent political wills, bodies which fully and precisely filled the description of the state or nation of public law, and which associated themselves as "the united states for their common defence and general welfare," becoming thereby "the several states" of "this union," as the constitution repeatedly calls them. The presumption is that each remained the same political body in the union, that acted in entering it, especially as there is no provision degrading, or even in the slightest degree changing, a state.

A fact commonly overlooked, though very important, should be noted here. The word "state" in the constitution, referring to New York or Virginia, means precisely what it does when it refers to France or Russia, i. e. the state or nation of public law. For instance, Art. III., § 2, provides for jurisdiction of cases "between a state, or the citizens thereof, and foreign states, citizens or subjects." [See also Amendment XI.] The words "state" and "states," used by the fathers without qualification, must mean what they do when used by publicists. The language they used must be taken in its established sense at that time. [See I. Story Com. § 207.]

All Elections or Powers are of States.

- All authority to elect federal functionaries, and all the "powers delegated to them," belong absolutely to the states, by virtue of their original existence and right. Article I., § 1, declares that "all legislative powers herein granted, shall be vested in a congress of the united states, which shall consist of a senate and house of representatives." The "members" of the "house are to be "chosen every second year, by the people of the several states," who are qualified to elect members of the lower branch of the state legislature. "The senate . . . shall be composed of two senators from each state, chosen by the legislature thereof, for six years." These provisions show that these two bodies, which are to possess and exercise "all legislative powers herein granted,” are to be entirely elected by the "states."

Section 8 of the same article declares, that the aforesaid " congress shall have power" to levy taxes, borrow money, regulate commerce, make the coinage, establish a postal system, declare war, raise armies, provide a navy, etc. In section 9 are the restrictions put by the

states upon their congress, i. e. "the congress of the * states;"