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CHAPTER II.

WHO MAKES "SUPREME LAW."

WILL now proceed to take up, seriatim, and test the truth and the constitutional principle of the leading dogmas, or so-called interpretations of the "Massachusetts school."

A conspicuous neutral journal, a few years ago, mentioned the fact that the Railway Company of New York had so contrived. a book, that their visitors, in registering, unwittingly signed a memorial to the Legislature for a charter, subsidy, or some other grant to the company; and remarked that "this neat little trick is worthy of the best minds ever produced by Massachusetts."

As to politicians they are alike everywhere, and that state is by no means peculiarly deserving of this fling. All of them trick for party or personal gain; and so degraded is partisanship nowadays, that even the most sacred principles of the constitution are subjects of compromises, adjustments, platforms, party legislation, etc. In principle the neat little trick is like some of the so-called interpretations I have to expose, just as the Thracian robber's acts were like those of Alexander the Great. But the difference in degree, if not in respectability, is vast. The former will ever remain anecdotical, and too little to be worth authenticating, while the expoundings of Dane, Story, and Webster, and the results thereof, will live as long as history itself. Mighty armies rallied upon their phrases, and marched to the music of their sounding words. At their bidding hundreds of thousands were slain, wide regions desolated, and states reduced from freedom to the most abject bondage of provinces.

I will attempt no allotment of credit among the above worthies. George Ticknor Curtis, the biographer of Daniel Webster, claims all the glory for his hero, as follows: . . . "It is to him that we are to trace that great body of public convictions, which, ten years after he was laid in the tomb, enabled the government of the United States to draw forth the energies of a people who would never have gone through the late civil war without those convictions. . . . He knew well, that if the issue did come in this terrible form, he had prepared

the intellect of his country, with that which could alone justify and support the efforts that must be made. He knew always that his own fame was completely identified with the doctrine that regards the constitution, not as a compact, but as a law." The italics are in the

text.

"What is our System?" is Matter of Fact. - Common sense would say that the question whether our general organism is "united states," or an undivided nation; a union of states," or a union of persons, is one of fact, to be settled by the constitution itself; and in cases of doubt, by historical evidences of intention. But the expounders, to accomplish their ends, set up before the sacred instrument a screen of what they call "interpretation," or commentary," which is composed of untruths, misstated facts, garbled quotations, and sophistical arguments; and thus produce the said "public convictions."

The constitution was established, and its character was fixed, when nine states had ratified it. That character was a matter of fact and technical description. But no question of interpretation could properly arise, till after the election and organization of the government; and, even then, not till the legislature, executive, or judiciary should find, involved in a case before them, some doubtful provision, phrase, oṛ word, to be interpreted according to accepted rules, for the purpose of ascertaining the intention of the ordaining power in using it. [See Part I., Ch. VIII.]

Proceeding now to show how the "Public Convictions" were produced, and to expose the untruth and sophistry of the leading socalled interpretations of the Massachusetts school, I notice en passant the above expression of Mr. Curtis, that Daniel Webster's "fame is identified with the doctrine that regards the constitution not as a compact, but as a law."

The instrument is both a compact and a law. It purports to be, and is, A COMPACT because it is to be adopted by separate ratifiers, they all being pre-existent and complete states (each of them acting with its own will through a convention); and their ratifications are declared to be "sufficient for the establishment of this constitution ;" and, secondly, it calls itself A LAW "the supreme law of the land." In the third place, the instrument is a CONSTITUTION of a governmental agency. I doubt if any one understands the instrument, who does not view it in this threefold aspect.

Aside from the constituting idea, it is, like a treaty between or among powers of Europe, both a compact and a law, it being the latter to the subjects of each power, even without a declaration to that effect. The constitution itself calls a treaty (which is a compact) "the law of the land." [Art. VI.]

So that Mr. Curtis' distinction is worthless, both as to the fame of Mr. Webster, and as "that which could alone justify and support" our unrepublican war. But let us pass to

INTERPRETATION No. 1.- THE NATION ORDAINED.

To prove that the federal constitution is made by, rests upon, and derives its authority from, the aggregate people of the united states as a nation, Nathan Dane writes that the instrument "is, as the people have named it truly, a constitution; and they properly said, We, the people of the united states, do ordain and establish this constitution,' and not 'we, the people of each state.' ' Judge Story quotes him approvingly, and then says: "There is nothing in the constitution intimating it to be a compact. . . . The language is, we, the people of the united states, do ordain and establish this constitution. . . . The people do ordain and establish, not contract and stipulate with each other. The people of the united states, not the distinct people of a particular state with the people of the other states. The people ordain and establish a constitution,' not a 'confederation."" The italics are Judge Story's. [I. Com. § 352.] Webster expresses himself in a similar manner. [Speech of 1833.] And so does the federal supreme court, Judge Story the abovequoted "commentator"

324.]

being the organ of the court. [1 Wheaton,

Ignoring or concealing Facts does not destroy Them. - It is unquestioned history, that each and every one of the thirteen original states held a convention, to ratify or reject the federal compact; that, after debate, the said convention did, by vote, ratify it; and that the said convention was elected and empowered solely by the said state, and only acted for her. And moreover, the will of the state was invariably expressed by a solemn instrument.

Leaving these ordinances of ratification out of the argument did not destroy them. Did the expounders forget that the long debates upon them, lasting two or three years; their final adoption by the states respectively in convention; the congress receiving and declaring them. as proof of the establishment of the compact, and as the basis of starting the new government, are indestructible facts in the history and archives of the country? Did they forget that these ordinances show precisely who ordained and established the constitution? Did they forget that these ordinances alone convey life and force from the people to the instrument? And finally, did they forget that these ordinances show that the people acted solely as commonwealths? In looking into this matter, we shall see why the expounders have suppressed these majestic utterances.

Did not the People, as States, ordain ? -It is true the constitution contains the words "We, the people of the united states," and not " we, the people of the state;" but this is not "the whole truth." The phrase in the constitution, and the one in the ordinances ratifying it, both refer to the authority which established the constitution, and must be taken together. It would be absurd to say that the fathers wrote in the pact, that it should be established "between the states ratifying" by convention; and that such RATIFYINGS SHALL BE SUFFICIENT FOR THE ESTABLISHMENT of this constitution;" recognized that each state could absolutely ratify or reject; and wrote in each ordinance of ratification: "We, the people of the state, do hereby assent to, and ratify this constitution ;" and yet, that they intended to provide that a nation, and not states, should ordain and establish!

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It must be noted here, that the cause of the constitution is the subject of inquiry, and not the constitution itself. As we have seen, the proof is direct and positive that the sole cause was the ordainers of the said ordinances, their thirteen separate wills being expressed in the said instruments, and becoming conjoint or united on the one object the constitution.

The preamble itself settles the question. It says the constitution was made by "the people of the united states" "for the united states." Itself, then, shows the pre-existent states that the people were. The said "people" had always acted as states. They were organized and capable of acting only as such. All history shows that they acted separately - each with her own will in federalizing them

selves.

Besides, that this seems self-evident, Part II. hereof gives overwhelming and conclusive proof.

The Ordaining Instruments. - If proof of the people's communication of authority to the federal compact, law, and constitution were required, the instrument by itself would not serve. The only expression the people ever made on the said constitution was in the thirteen several instruments alluded to, each of which is nearly like the following, which was passed, after full and solemn debate, in the convention of Pennsylvania, by a vote of 46 to 23: "We, the delegates of the people of the commonwealth of Pennsylvania . . . do, in the name and by the authority of the same people, assent to and ratify the foregoing constitution for the united states of America. Done in convention . . . 12th December, 1787." [For all the instruments see I. Ell. Deb. 319-337.]

The first of these ordinances was passed by Delaware, December 7, 1787; two other states acted in the same month; two in January, 1788;

one in each of the months of February, April, and May; New Hampshire, the ninth and complemental state, and Virginia, in June; one in July of the same year; one in November, 1789; one in May, 1790 ; and Vermont, the fourteenth state to ratify, in January, 1791. It is hardly necessary, to say that each state acted of her own motion, in her own time, at her own capital, and through her own convention, with absolute power to ratify or reject. Said Chief Justice McKean in the Pennsylvania convention: "The power of this convention is derived from the people of Pennsylvania,

for the sole

purpose of ratifying the constitution, . . . or of rejecting it." [II. Ell. Deb. 529.] This was the view of the advocates in all the states. The convention was called by the state, elected by the state, to represent the state; and was to ratify or reject the federal plan absolutely. There was no interference, or even hint from any other state or states, or any nation. The association thus formed was properly considered to be a "union of states," as the constitution phrases it, and was styled "the united states!"

The Compact required the States to ordain. Ratification," by "the states," was to be "sufficient for the establishment of the constitution, between the states, so [i. e. by conventions] ratifying the same : " these are the very words of the compact. The conclusiveness of this language of Article VII., is herein before noted [p. 154]. It is absolute proof that the states, as such, were to ordain the constitution; for it shows, 1st. That "ratification " is to effect the "establishment." 2d. That states are to do the "ratification;" and 3d. That, therefore, the constitution is to be established by and "between the states so ratifying the same." There is not in the constitution, or in contemporaneous history, any hint of any people ratifying, except commonwealths of people, i. e. the states. And, as if to make denial impossible, the states are named in the very first article of the constitution, as pre-existent historical and geographical bodies, and are recog nized and provided for, throughout the instrument, as the sources of authority; and there is no sign that they were in any respect changed -much less degraded to counties or provinces. Nor is there any hint of the abatement of their sovereignty. On the contrary, the record proves that "each state retained its sovereignty," and acted in such character up to the very finishing of the federal system [see Article II. of the first federal pact]; and that the fathers themselves contemplated the federating states as continuing unchanged, and as remaining, in the eye of public law, states or nations. Article III., § 2, Amendment XI., and other articles, show that the word "states," referring to Massachusetts, New York and Virginia, means the technical states or nations of the jus gentium, just as it does when referring to France or Russia.