- The Constitution not adopted by one people “in the aggregate” -- a great fallacy exposed -- mistake of Judge Story -- colonial relations -- the United colonies of New England -- other associations -- Independence of communities traced from Germany to great Britain, and from great Britain to America -- Everett's “provincial people” -- origin and continuance of the title “United States” -- no such political community as the “people of the United States.”
The historical retrospect of the last three chapters and the extracts from the records of a generation now departed have been presented as necessary to a right understanding of the nature and principles of the compact of 1787, on which depended the questions at issue in the secession of 1861 and the contest that ensued between the states. We have seen that the united colonies, when they declared their independence, formed a league or alliance with one another as “United States.” This title antedated the adoption of the Articles of Confederation. It was assumed immediately after the Declaration of Independence, and was continued under the Articles of Confederation, the first of which declared that “the style of this confederacy shall be ‘The United States of America’ ”; this style was retained—without question—in the formation of the present Constitution. The name was not adopted as antithetical to, or distinctive from “confederate,” as some seem to have imagined. If it has any significance now, it must have had the same under the Articles of Confederation, or even before they were adopted. It has been fully shown that the states which thus became and continued to be “united,” whatever form their union assumed, acted and continued to act as distinct and sovereign political communities. The monstrous fiction that they acted as one people “in their aggregate capacity” has not an atom of fact to serve as a basis. To go back to the very beginning, the British colonies never constituted one people. Judge Story, in his “Commentaries” on the Constitution, seems to imply the contrary, though he shrinks from a direct assertion of it, and clouds the subject by a confusion of terms. He says: “Now, it is apparent that none of the colonies before the Revolution were, in the most large and general sense, independent or sovereign communities. They were all originally settled under and subjected to the British Crown.” And then he proceeds to show that they were, in their  colonial condition, not sovereign—a proposition which nobody disputed. As colonies, they had no claim, and made no pretension, to sovereignty. They were subject to the British Crown, unless, like the Plymouth colony, “a law unto themselves,” but they were independent of each other—the only point which has any bearing upon their subsequent relations. There was no other bond between them than that of their common allegiance to the government of the mother country. As an illustration of this may be cited the historical fact that when John Stark, of Bennington memory, was before the Revolution engaged in a hunting expedition in the Indian country, he was captured by the savages and brought to Albany, in the colony of New York, for a ransom; inasmuch as he belonged to New Hampshire, however, the government of New York took no action for his release. There was not even enough community of feeling to induce individual citizens to provide money for the purpose. There were, however, local and partial confederacies among the New England colonies, long before the Declaration of Independence. As early as the year 1643 a Congress had been organized of delegates from Massachusetts, Plymouth, New Haven, and Connecticut, under the style of “The United colonies of New England.” The objects of this confederacy, according to Bancroft, were “protection against the encroachments of the Dutch and French, security against the tribes of savages, the liberties of the gospel in purity and in peace.”1 The general affairs of the company were entrusted to commissions, two from each colony; the same historian tells us that “to each its respective local jurisdiction was carefully reserved,” and he refers to this as evidence that the germprinciple of state rights was even then in existence. “Thus remarkable for unmixed simplicity” (he proceeds) “was the form of the first confederated government in America. . . . There was no president, except as a moderator of its meetings, and the larger state [sic], Massachusetts, superior to all the rest in territory, wealth, and population, had no greater number of votes than New Haven. But the commissioners were in reality little more than a deliberative body; they possessed no executive power, and, while they could decree a war and a levy of troops, it remained for the States to carry their votes into effect.”2 This confederacy continued in existence for nearly fifty years. Between that period and the year 1774, when the first Continental Congress met in Philadelphia, several other temporary and provisional associations of  colonies had been formed, and the people had been taught the advantages of union for a common purpose; they had never abandoned or compromised the great principle of community independence, however. That form of self-government, generated in the German forests before the days of the Caesars, had given to that rude people a self-reliance and patriotism which first checked the flight of the Roman eagles, which elsewhere had been the emblem of their dominion over the known world. This principle—the great preserver of all communal freedom and of mutual harmony—was transplanted by the Saxons into England, and there sustained those personal rights which, after the fall of the Heptarchy, were almost obliterated by the encroachments of Norman despotism; having the strength and perpetuity of truth and right, they were reasserted by the mailed hands of the barons at Runnymede for their own benefit and that of their posterity. Englishmen, the early settlers, brought this idea to the wilds of America, and it found expression in many forms among the infant colonies. Edward Everett, in his Fourth-of-July address delivered in New York in 1861, following the lead of Judge Story, and with even less caution, boldly declares that, “before their independence of England was asserted, they [the colonies] constituted a provincial people.” To sustain this position—utterly contrary to all history as it is—he is unable to adduce any valid American authority, but relies almost exclusively upon loose expressions employed in debate in the British Parliament about the period of the American Revolution—such as “that people,” “that loyal and respectable people,” “this enlightened and spirited people,” etc. The speakers who made use of this colloquial phraseology concerning the inhabitants of a distant continent, in the freedom of extemporaneous debate, were not framing their ideas with the exactitude of a didactic treatise, and could little have foreseen the extraordinary use to be made of their expressions nearly a century afterward, in sustaining a theory contradictory to history as well as to common sense. It is as if the familiar expressions often employed in our own time, such as “the people of Africa,” or “the people of South America,” should be cited, by some ingenious theorist of a future generation, as evidence that the subjects of the Khedive and those of the King of Dahomey were but “one people,” or that the Peruvians and the Patagonians belonged to the same political community. Everett, it is true, quotes two expressions of the Continental Congress to sustain his remarkable proposition that the colonies were “a people.” One of these is found in a letter addressed by the Congress to General  Gage in October, 1774, remonstrating against the erection of fortifications in Boston, in which they say, “We entreat your Excellency to consider what a tendency this conduct must have to irritate and force a free people, hitherto well disposed to peaceable measures, into hostilities.” From this expression Everett argues that the Congress considered themselves the representatives of “a people.” But, by reference to the proceedings of the Congress, he might readily have ascertained that the letter to General Gage was written in behalf of “the town of Boston and Providence of Massachusetts Bay,” the people of which were “considered by all America as suffering in the common causes for their noble and spirited opposition to oppressive acts of Parliament.” The avowed object was “to entreat his Excellency, from the assurance we have of the peaceable disposition of the inhabitants of the town of Boston and of the Providence of Massachusetts Bay, to discontinue his fortifications.”3 These were the “people” referred to by the Congress; the children of the Pilgrims, who occupied at that period the town of Boston and the province of Massachusetts Bay, would have been not a little astonished to be reckoned as “one people,” in any other respect than that of the “common cause,” with the Roman Catholics of Maryland, the Episcopalians of Virginia, the Quakers of Pennsylvania, or the Baptists of Rhode Island. The other citation of Everett is from the first sentence of the Declaration of Independence: “When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another,” etc., etc. This, he says, characterizes “the good people” of the colonies as “one people.” Plainly, it does no such thing. The misconception is so palpable as scarcely to admit of serious answer. The Declaration of Independence opens with a general proposition. “One people” is equivalent to saying “any people.” The use of the correlatives “one” and “another” was the simple and natural way of stating this general proposition. “One people” applies, and was obviously intended to apply, to all cases of the same category—to that of New Hampshire, or Delaware, or South Carolina, or of any other people existing or to exist, and whether acting separately or in concert. It applies to any case, and all cases, of dissolution of political bands, as well as to the case of the British colonies. It does not, either directly or by implication, assert their unification, and has no bearing whatever upon the question. When the colonies united in sending representatives to a Congress in Philadelphia, there was no purpose—no suggestion of a purpose—  to merge their separate individuality in one consolidated mass. No such idea existed, or with their known opinions could have existed. They did not assume to become a united colony or province, but styled themselves “united colonies”—colonies united for purposes of mutual counsel and defense, as the New England colonies had been united more than a hundred years before. It was as “United States”—not as a state, or united people—that these colonies—still distinct and politically independent of each other—asserted and achieved their independence of the mother country. As “United States” they adopted the Articles of Confederation, in which the separate sovereignty, freedom, and independence of each was distinctly asserted. They were “united States” when Great Britain acknowledged the absolute freedom and independence of each, distinctly and separately recognized by name. France and Spain were parties to the same treaty, and the French and Spanish idioms still express and perpetuate, more exactly than the English, the true idea intended to be embodied in the title—les États-Unis, or los Estados Unidos—the States united. It was without any change of title—still as “United States”—without any sacrifice of individuality—without any compromise of sovereignty—that the same parties entered into a new and amended compact with one another under the present Constitution. Larger and more varied powers were conferred upon the common government for the purpose of insuring “a more perfect union”—not for that of destroying or impairing the integrity of the contracting members. The point which now specially concerns the argument is the historical fact that, in all these changes of circumstances and of government, there has never been one single instance of action by the “people of the United States in the aggregate,” or as one body. Before the era of independence, whatever was done by the people of the colonies was done by the people of each colony separately and independently of each other, although in union by their delegates for certain specified purposes. Since the assertion of their independence, the people of the United States have never acted otherwise than as the people of each state, severally and separately. The Articles of Confederation were established and ratified by the several states, either through conventions of their people or through the state legislatures. The Constitution which susperseded those articles was framed, as we have seen, by delegates chosen and empowered by the several states, and was ratified by conventions of the people of the same states—all acting in entire independence of one another. This ratification alone gave it force and validity. Without the  approval and ratification of the people of the states, it would have been, as Madison expressed it, “of no more consequence than the paper on which it was written.” It was never submitted to “the people of the United States in the aggregate,” or as a people. Indeed, no such political community as the people of the United States in the aggregate exists at this day or ever did exist. Senators in Congress confessedly represent the states as equal units. The House of Representatives is not a body of representatives of “the people of the United States,” as often erroneously asserted; but the Constitution, in the second section of its first article, expressly declares that it “shall be composed of members chosen by the people of the several States.” Nor is it true that the President and Vice-President are elected, as it is sometimes vaguely stated, by vote of the “whole people” of the Union. Their election is even more unlike what such a vote would be than that of the representatives, who in numbers at least represent the strength of their respective states. In the election of President and Vice-President the Constitution (Article Ii) prescribes that “each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors” for the purpose of choosing a President and Vice-President. The number of these electors is based partly upon the equal sovereignty, partly upon the unequal population of the respective states. It is, then, absolutely true that there has never been any such thing as a vote of “the people of the United States in the aggregate”; no such people is recognized by the Constitution; no such political community has ever existed. It is equally true that no officer or department of the general government formed by the Constitution derives authority from a majority of the whole people of the United States, or has ever been chosen by such majority. As little as any others is the United States government a government of a majority of the mass.