Some great constitutional questions.
By B. J. Sage.
Correction of errors.
The South fought for the enjoyment of independence in a separate Union, and lost. But God's truths cannot go down in a human fight. Facts are indestructible. The States, the citizens thereof, the Constitution, its words and meanings, the public records, the ratifications of the States that gave to the Constitution all its life and validity-all these are facts that lived through the fighting unchanged. No thoughtful person of eminence ever considered them involved in the ‘Lost Cause,’ or affected by the result of the war. ‘After fighting,’ said Lincoln, ‘you must meet and settle; our Federal amendments measure the change that was made. They did not change the polity.’ Common sense, then, shows that a separate Union was the cause the South lost, and that bringing the States back to the written Constitution, was the cause the North won. I, therefore, in correcting some errors, deal with the Constitution, its establishment, its history, and its meaning, as facts. The task is to state and describe, not to interpret or construe.1.—Professor Bledsoe and ‘P. C. Centz,’ on Davis's alleged treason.
The first edition of the Republic of Republics, by ‘P. C. Centz Barrister,’ was published in London in the summer of 1865, under the title of ‘Davis and Lee,’ &c.; and a second edition was issued [486] in New York the following winter. The great aim of the work was to show that Davis and the other Confederate leaders were not traitors, and could not be lawfully punished as such. The author in his introductory statement styled his work ‘Advance Chapters, to declare and show that no gibbet can be erected for Davis and Lee and the other Confederate Chiefs, except on ground that is composed solely of falsehood and fraud.’ In 1866, Professor Bledsoe published his work entitled: ‘Is Davis a Traitor,’ making substantially the same argument, and presenting, in a large measure, the same authorities. Judge Charles E. Fenner, in an admirable discourse delivered at the unveiling of the Lee statue in New Orleans on the 22d of February, 1884, credits Professor Bledsoe's work with being the first to explain why the phrase, ‘We, the people of the United States,’ instead of ‘We, the people of the States,’ became the phrase of the Constitution. To correct this error, which is based on a seeming claim of Professor B. himself, and at the same time to refute the base and baseless heresy that ours is a National instead of a Federal polity, I beg leave to quote the following passage from the aforesaid work of Mr. Centz, pp. 65, 68:The author then goes on to state the following corroborative facts, which I condense, to-wit: that in the Convention of 1787, Mr. Ellsworth moved to expunge from the plan of the Constitution ‘the word “national,” and retain the proper title “The United States;” ’ that this was agreed to nem. con.; that, accordingly, the word national was struck out of the proposed ‘Articles of Union’ (as they were then called) twenty-six times; that Ellsworth stated, nem. dis., that ‘he wished the plan to go forth as an amendment to the articles of confederation;’ that all the States had carefully instructed their deputies to make ‘such alterations and provisions as would make the Federal Constitution adequate to the exigencies of the Government and the preservation of the Union,’ and had not authorized them to go further; that the preamble adopted declared this union of States to be (in comparision) ‘a more perfect Union;’ that the Convention, after maturing the plan, unanimously, through the pen of Washington, stated their aim to be ‘the Federal Government,’ and that the Congress of States declared on the 13th of September, 1788, that they had received and filed the ratifications of the States, [488] which were provided by the Constitution itself, to be ‘sufficient for the establishment’ of it. At the conclusion of his most exhaustive historical and constitutional argument, the author asserts that the whole case against Davis, Lee et als, is based on a perversion of the principles of our polity— ‘based,’ to use his own language—‘solely on falsehood, fraud and violence;’ and he contends that ‘it is only on ground, composed of these detestable ingredients that their gibbet can be erected.’ In December, 1865, Charles O'Connor characterized the work as ‘an admirably prepared and overwhelmingly conclusive brief’ for Davis's defence, and, some time afterward, he employed the author in the case; the Philadelphia Ledger stated that ‘a most important argument had been received by the President from London, in which are set forth the reasons why Davis cannot be convicted in any court;’ and many leading papers of that day noticed the work as one of extraordinary research and ability, specially designed to show that Davis was no traitor and was not punishable as such. In short, all that was valuable in the defensive argument of Professor Bledsoe, delivered in 1866, was given to the world by ‘P. C. Centz, Barrister,’ in 1865; though as a criticism and refutation of the consolidation dogmas of Story and Webster, Professor B.'s work is unsurpassed.
Ii.
So with The war between the States,
Which Hon. A. H. Stephens published in 1868. One of its most important demonstrations had been given, in the same general form, and for the same purpose, by ‘P. C. Centz, Barrister,’ early in 1865.
If Mr. Stephens had quoted from ‘Davis and Lee,’ pp. 22-47, his ground would have been completely covered.
In those pages Mr. Centz carefully gave the history of each State's convention, debate and ratification, and showed that ‘the people’ who were organized and capable of acting only as States, and were actually named as such in the Constitution, did, as such political bodies, give to the said Constitution its entirety of life and legal force—three of them ratifying, and pro tanto establishing, the said Constitution in 1787, eight in 1788, one in 1789, and the last, Rhode Island, in 1790; and moreover clearly demonstrated that the said States themselves intended to be and remain the government—intended, in short, to remain republics or self-governing societies of people, each to select her quota of the federal agency from her own members or citizens, who, on being selected, were empowered and sent by the State, under her commission and seal, to speak her federal voice, and do her federal duty.
[489]
Mr. C. concluded his demonstration as follows: ‘We have now patiently gone through all the original States, and ascertained from the testimony of the leading statesmen, and from the acts of the States themselves, that the Constitution was formed and vitalized by thirteen independent and concurrent wills, each with no superior on earth; and we have seen no great nationality, or national will, exercising itself on the matter of government in any sense.
The dogmas of Dane, Story and Webster have been shown to be untrue; * * all history falsifies their utterances.’
The arguments and citations, however, are so obvious to one who earnestly searches for the origin of the Constitution that originality can scarcely be attributed to either of the authors, and neither of them would be under any obligations to give credit.
And the subject is only referred to here because many, who have only seen Mr. Centz's later editions, think he copied from Mr. Stephens.
Iii. ‘is secession a constitutional right’?
This is the sub-title of Professor Bledsoe's book; and Judge Fenner, in his discourse, also seems to regard the question as a Constitutional one. As the Constitution has nothing express or implied on the subject, the right must exist—if at all—as an original and inherent one, in the parties to the instrument. And there is where it is: the people in a natural society, such as a State is, must have a collective instinct, right and duty of self-preservation, and a collective mind — the aggregatio mentium of the people—the only governing mind of the country. And the only original, inherent, natural will, of which sovereignty or the right of government can be predicated, is in the said mind, which dwells in the body called the State. Take, for example, Massachusetts, New York, or Pennsylvania. Everybody will admit that each of these entities had, at the making of the Constitution, its own name, geography, people, organism and political will, and that they made a voluntary union. If it is now involuntary, they are again provinces, which they ceased to be when they achieved independence and statehood in the revolution. These societies of people, named as New York, Massachusetts, Virginia, &c., in the first article of the Constitution, are ‘the people of the United States.’ ‘The people’ never had form or capacity for governmental action, except as States. As James Wilson said, sovereignty dwells in them ‘after as well as before, a Constitution is made.’ And, as Daniel Webster said, ‘sovereignty in America is al- [490] ways in the people, and never in the government.’ And, as no change whatever was provided as to name, geography, people, organism, mode of mental action, or political will, of these societies, we may consider all assertions of their degradation as falsehoods, and not mistakes of interpretation! Why did not the great Republican leaders, Chase, Seward, Andrew, Wilson, Stevens, Wade, Trumbull, and others, when they shaped the amendments the conquering States dictated, prohibit secession? Because they knew their sovereigns, New York, Massachusetts, Pennsylvania, Ohio and Illinois preferred the old union of free societies of people to a nation of counties; and they could not even have hinted at preventing secession, and thereby chaining States; and they reflected that risks and burdens must always go with ‘the blessings of liberty.’ Freedom is not freedom if restrained or qualified. We cannot, if we would, get rid of a right essential and vital to a sovereign mind; but we can behave ourselves, as Washington besought us to do, and preserve justice, amity and mutual interest, which he said were the original motives and ‘sacred ties’ of union. If these be preserved, as written and consecrated in the solemn preamble, the ‘domestic tranquillity,’ founded on content, preserves the intended union. Only tyrants and robbers want tied and helpless victims.Iv. ‘two Constructions of the Constitution,’
Is a common phrase, involving error; ‘opposite interpretations of a written instrument’—as Judge Fenner euphemistically puts it. Soon after peace, James L. Orr, of South Carolina, hastened to ‘bridge the bloody chasm’ by telling the North we differed with her as to the construction of the Constitution; and she proved ours false by whipping us. By parity of reasoning, if you whip a man who denies your statement that your horse is sixteen feet high, you produce the monster; and if you drive a man from his estate, his title is bad and yours good! The truth is, all the fighting or force, since Adam, never produced a truth or changed the character of a lie. And even Mr. Lincoln, although favoring the northern ‘construction,’ said: ‘When you are done fighting, you must meet and settle the question you fight about.’The contest is between truth and untruth.
A proper statement removes the error and confusion. One party sticks to history, forming his theory of facts, which cover the ground [491] like a Mosaic pavement. He makes his case of facts, which merely require statement, not argument or interpretation. Our polity is real—factual in all its parts. The opposing theory is figments—assertion without fact. It is speculative or doctrinal. It is obvious that when a man says this is a ‘Union of States,’ he asserts a fact; he tells the truth, for the Constitution itself speaks of the States in this Union—calls the system ‘the United States,’ and characterizes all the people as citizens of States. There is, and can be, no exegesis, or interpretation, or construction, or doctrine about this. It is simple truth; but when a man says ‘these States is a nation,’ and that the Union is an association of the people into one State, of which ‘the States is’ counties, he simply tells an ungrammatical falsehood! There is no subject of construction. It is simply a matter of fact and history, and he who maintains the contrary must erase the records of heaven, for though truth may be crushed to earth here, it is written down by the recording angel, and it has the guaranty of God that it shall endure through His eternal years! See ‘The Republic of Republics,’ pp. 50-58, for a clear exposition of the matter, and an exposure of the fallacy of Mr. George T. Curtis's ‘two schools of interpretation.’ Again, it is a true assertion that the States themselves devised the Constitution, convening and voting as States in doing so; also that each State ratified the compact by her separate convention; so that the establishing of the Constitution was done by the States; and hence the counter-assertion that the nation made the Constitution, reserving to the States their rights, and imposing delegative duties on them, is entire untruth, and not erroneous construction. And as the States were preexistent, complete, self-governing societies; as they were named in the first article as political bodies; as, by their ratification, they were to establish the polity, thus becoming, as Hamilton said, ‘the parties to the compact,’ or, as Webster said, ‘the thirteen Confederated States;’ as they owned all the votes, and were to elect, commission, and send for Federal duty, their own citizens and subjects; as they were to be and remain forever the amenders of the Constitution; as no other potential actors are provided for or hinted at, and, as finally no change whatever is made in these original and designated societies, as to name, geography, people, organism, mode of mental action, or political will, we may well conclude that all assertions as to their being merged in a nation, or degraded from their original statehood, are treasonable falsehoods, instead of mistakes of interpretation! [492] The truth is, our statesmen and jurists are inexcusable for construing the Constitution instead of treating it factually as they would the person, lineaments, and traits of a king, or as they would the foundations, walls, and uses of a fort. The States are ‘beautiful structures on the broad beach’—the Union a surrounding ‘dyke to fence out the flood.’ [Fisher Ames.] The Constitution and all its parts, as well as its history, are facts. Construction indeed! Gouverneur Morris deals with some of the constructors or interpreters as follows: ‘The Legislature will always make the power it wishes to exercise * * swearing the true intent and meaning [of the Constitution] to be that which suits their purpose.’ [Iii, Life of M.]V. Error as to sovereignty's seal and action.
The able judge and gallant soldier referred to above, said, last year, in a speech on ‘Decoration Day,’ that the Constitution left the question of sovereignty ‘unsettled, or settled it so obscurely that the very framers of the instrument placed antipodal constructions on it.’ He also quoted, as further evidence of doubt, the following curious dedication of Mr. J. C. Hurd's ‘Theory of our National Existence,’ viz.: ‘To the sovereign, whoever he, it, or they may be.’ But I submit that the author is misunderstood. He recognizes sovereignty as being in the societies of people, but shows that revolutionary perversion, usurpation, fraud and force have melted the States, so to speak, into a nation—making, out of many republics, a pseudo one—the E pluribus unum of the consolidationists; and he tries to show where, in the monstrous and treasonable product, sovereignty is located; and, finally, seeming to find it easier to swim with the tide of falsehood and wrong than to stop and stand on the rock of truth, the rock of his own faith, he recommends accepting the new regime. Now, if history show what actors ‘established’ the ‘constitution,’ ‘delegated’ all its ‘powers,’ and ‘chose’ and ‘appointed’ the servants and agents to execute it, surely it shows the sovereignty that constituted the Constitution; and that now remains above it, controlling, through its agency, all the subjects of its government. Madison says such arguers ‘lose sight of the people.’ And he further says, ‘the Federal and State governments are but different agents and trustees of the people. * * * The ultimate authority, wherever the derivative may be, resides with the people alone.’ [Federalist, 46.] And in numbers 39 and 40, and in the Virginia Convention, he said it was the people as ‘thirteen distinct sovereignties,’ [493] and that the government formed was federal and not national. Washington, Hamilton, Sherman, Ellsworth, Ames, Bowdoin, Morris, and, in short, all the fathers, took the same view; all recognizing the union of sovereign States. Now, how is it possible for any informed person to doubt that sovereignty is, as James Wilson says, ‘in the people before they make a Constitution, and remains in them after it is made,’ i. e., ‘in thirteen independent sovereignties’—to use his own words? Of course the collective people, that is to say, societies, is meant, for only as organized bodies can the people have political mind and act in government. New York, Massachusetts, Maryland, and the rest of the names in the Constitution, mean only ‘the people’ called by those names—‘the people of the United States.’ ‘The people,’ as States, have the only voters. ‘The people,’ as States, have all the federal representation. ‘The people,’ as States, ‘choose’ and ‘appoint’ and ‘commission’ all representatives, senators and electors of presidents from their own citizens. [Articles I and II.] ‘The people,’ as States, are to ‘establish’ the Constitution through their conventions. [Article VII.] ‘The people,’ as States, are guaranteed by the associated States to be republics or self-governing peoples. [Article IV.] ‘The people,’ as States, are to make all amendments. [Article V.] Each State has ‘suffrage’ in the Senate, which can never end without her ‘consent.’ All these provisions of the constitution, especially the last, make obvious both mind in the State and sovereignty in mind. Denying this seat and residence of sovereign will is simple untruth-criminal, if coupled with knowledge.Webster and Curtis fully Concede the Point
—The former saying, in 1833, that ‘sovereignty of government is unknown in North America.’ ‘All power is with the people.’ ‘Until the Constitution was ratified by nine States, it was but a proposal, the mere draft of an instrument, * * * inoperative paper, * * it had no authority; it spoke no language.’ In 1849 he said ‘the parties to the Constitution originally were the thirteen confederated States’; that it was ‘founded on compact and plighted faith’; and that the individual States had ‘the exclusive possession of sovereignty.’ In 1850 he said ‘the Constitution was the bond, and the only bond, of the union of these States,’ and in 1852, just before his death, he said they never intended ‘to consolidate themselves into [494] one government,’ and ‘cease to be Maryland and Virginia, Massachusetts and Carolina.’ He saw that ‘the people’ were ‘the States’ and ‘the States’ ‘the people’; and that the real government was the republics, or self-governors, named in the Constitution. Curtis, the most conspicuous living advocate of the pseudo nation, said Rhode Island had after independence, and of course up to her adoption of the Constitution, ‘absolute sovereignty.’ [Ii Hist. Const'n, 599.] Again:—‘The meeting of the States [to form a Constitution] was purely voluntary: they met as equals, and they were sovereign political communities, whom no power could rightfully coerce into a change of their condition.’ [Ibid.] Again:—‘The relations of the individual to the political society, of which he is a member, * * came into existence as soon as a sovereign American State was formed out of a revolted British colony.’ [Let. to N. Y. World, 1869.] Again:—‘The source of fundamental law is found in the sovereign authority of the people of a distinct State to order the political conditions of society. It cannot be doubted that this is the very highest of all human authority.’ [Ibid.] Hundreds of pages of such proofs and admissions as the above could be given, and American History contains nothing to the contrary. ‘The people’ then were Republics; i. e., societies of people, governing themselves; all governmental functionaries, State or Federal, being their servants and agents, and not above them. The societies, New York, Massachusetts, Virginia, et als., being complete and independent, and named in the Constitution, were likened to pillars voluntarily taking their place in an edifice, or to stars of a constellation. As entities, they were as separate as stars. Let us then symbolize the States by thirteen stars in a row, thus designating the people of the United States; i. e., the thirteen Republics, or States, at the time when all agreed and guaranteed that each was sovereign, and when they were together proceeding to devise the Constitution, which they afterwards established by separate adoptions; and next, below the thirteen symbols, we will draw the line indicating the Federal Constitution, they, as sovereigns, devised and established. The next line below will be the tripartite government; and, lastly, will come the subjects of government, viz: the people and their belongings. This is intended to be-[495]
A blackboard demonstration of an error,
Which is probably the most signal, but highly respectable, blunder in history, since its authors and supporters are the very highest of the professed expounders of the Constitution—some of them being the sworn officials charged with protecting the lives and sovereignty of their masters and principals—the American Republics.‘The People of the United States,’i. e., the 13 Republics in 1787. 1 * * * * * * 2 ‘The Federal Constitution, they, in Congress, declared established, Sept. 13, 1788.’ 3‘The Federal Government,’ organized March, 1789. 4 The people and their belongings—the subjects of the government.Now, no one will dare to deny that this is the proper collocation of the grades of political authority, for the States did actually and voluntarily devise and establish the Constitution, while there was, out of them, no acre or man for a nation; and all statements of national mind or action in the premises are false. The States filed the separate ratifications, which the Constitution itself declared ‘sufficient for the establishment’ thereof, in the archives of Congress, there to remain and eternally belie the national theory. We can neither assert the acts of the States out of the record nor argue State seals from the bond. Provinces achieved independence and statehood. Afterwards they agreed and guaranteed that each State was sovereign. Each must have acted in such character through the making of the Constitution. The status of each must have continued thereafter. It is absurd to suppose they did not retain sovereignty, to effectuate their own purpose of governing their subjects. Again, they began their work with their own ‘absolute supremacy’; they could not foolishly subject themselves to the ‘absolute supremacy’ of their constituted agency. Surely, they could not begin as States and end as provinces, achieving statehood by bloody revolution, and soon swapping it for countyhood. It cannot be that they violently severed themselves from one nation to become subordinate parts of another—exchanging a personal king for a corporate one. [496] Again, as these societies made a voluntary union, they could not, without a supervening revolution, be subject to involuntary and indissoluble relations. Nor could ‘the parties to the compact’—as Hamilton called them—after having established an agency, become subordinate and allegiant to it, without treasonable violence or fraud. In fine, if the pernicious theory in question be maintained, we shall have reached a subversion of the republic — a change from the sovereignty of the people to the sovereignty of their agency—‘the very way,’ says the great Burke, ‘in which all the free magistracies of the world have been perverted from their purposes.’
The Constitution Repudiates nationalism.
In the foregoing quotation from ‘Davis and Lee’ it is shown that the Convention of States repudiated the national theory [see also R. of R., Part III, ch. VII]; let us now see how the Constitution annihilates it. I. The States were, in the Constitution, designated with proper nouns, as preexistent political societies, each with its own name, geography, people, organism, and political authority; and as each was agreed by all to be sovereign, and as no change was provided for or hinted at in the instrument, it is absurd to suppose that any was made. Hence we may assert, as Hamilton did, that the States remained ‘the parties to the compact’ and the ‘essential component parts of the Union.’ [Fed. 85; II Ell. Deb. 304.] II. It is absurd to suppose that the named societies of people—viz., New York, Massachusetts, Virginia, et als—started in the work of constituting self-government, possessing the ‘all-power,’ and all original and inherent rights given by the Deity; and ended the work only possessed of privileges under their own Constitution, and with delegative duties imposed on them by superior authority. No one can believe such theory. III. As the States, by their respective ratifications, established what they together had devised, they necessarily reserved—i.e., kept back what they did not delegate in the language used; hence it is alike false and foolish to talk about rights reserved to them in the Constitution, and still more so for such expounders to call themselves ‘Staterights men.’ Reservations thus made to the States would be, at best, but ‘privileges.’ IV. Citizenship is a status, which the Constitution recognizes as preestablished. ‘The people of the United States’ are, in fact, and [497] constitutionally members, citizens and subjects of States, and the Federal law was laid on them and their obedience commanded by States. [See Art. IV, § 2; Art. III, § 2; Am. Ed. XI; Rep. of Rep. 4th Ed., Part V, ch. VII.] The Democratic caucus resolution that our people are citizens of two governments, owing allegiance to both, is not even respectable sophistry, let alone truth. V. All voters belong originally and absolutely to the States, and all the representatives, senators, and presidential electors are freely ‘chosen’ or ‘appointed,’ by the said States, from their own members or subjects, and have title to office and right to act in Federal matters only through the commissions and under the seals of their respective States. In short, and obviously, all the life and validity of the Constitution come from States; all the ‘powers’ of it are ‘delegated’ by them and ‘vested’ in its ‘governments,’ and all its operations of every kind and character are theirs — they themselves really being ‘the Government’ of the country for general affairs‘The States’ are the real ‘Government of the United States.’
No one who searches for truth, and thinks, can fail to see that ‘the people’ are the States and the States the people—all being ‘the people of the United States’ and ‘citizens of different States,’ as the Constitution itself says; that the associated States themselves are really and necessarily ‘the government of [i. e. belonging to] the United States;’—the so-called Government being only their agency; that all the authority in the Constitution is delegated or entrusted in writing, by the States, for their own use, to their own servants, who are, in technical status, describable as their ‘substitutes and agents [see the original bills of rights and Elliot's Debates, passim];’and finally, that the Convention of 1787, unanimously declared as follows: ‘The style of this Government shall be the United States of America’—thus showing beyond doubt that the republics or selfgoverning societies of people were to continue to be, as they had been, the governing powers of the land. [See Rep. of Rep's, part III, ch. VII.]Another fundamental error exposed.
Before concluding I will give another blackboard-demonstration of error—as to sovereignty—which is of vital moment. The bottom line of the following diagram “A” to “B” is the extent of governing [498] jurisdiction. “The Federal and State governments,” says Madison, “are but different agents of the people.” “Sovereignty,” continues he, “resides with the people alone.” “C” is the State agency, “D” the Federal one. Each acts over the whole ground. |
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