ereign states; and that the constitution they formed could from the nature of the case be only a treaty, compact, or agreement between sovereigns. It could create an agency, but not a government. The sovereign states could only delegate the exercise of their sovereign powers, not the sovereign powers themselves. The states could agree to exercise certain specific powers of sovereignty only in common, but the force and vitality of the agreement depended. on the states, parties to the agreement, retaining respectively their sovereignty. Hence, he maintained that sovereignty, after as before the convention, vested in the states severally. Hence state sovereignty, and hence his doctrine that in all cases that cannot come properly before the supreme court of the United States for decision, each state is free to decide for itself, on which he based the right of nullification, or the state veto of acts of congress whose constitutionality the state denies. Mr. Calhoun was himself no secessionist, but he laid down the premises from which secession is the logical deduction; and large numbers of young men, among the most open, the most generous, and the most patriotic in the country, adopted his premises, without being aware of this fact any more than he himself was, and who have been behind none in their loyalty to the Union, and in their sacrifices to sustain it, in the late rebellion.

The formidable rebellion which is now happily suppressed, and which attempted to justify itself by the doctrine of state sovereignty, has thrown, in many minds, new light on the subject, and led them to reexamine the historical facts in the case from a different point of view, to see if Mr. Calhoun's theory is not as unfounded as he had proved Mr. Webster's theory to be. The facts in the case really sustain neither, and both failed to see it: Mr. Calhoun because he had purposes to accomplish which demanded state sovereignty, and Mr. Webster because he examined them in the distorting medium of the theory or understanding of the statesmen of the eighteenth century. The civil war has vindicated the Union, and defeated the armed forces of the state sovereignty men; but it has not refuted their doctrine, and as far as it has had any effect, it has strengthened the tendency to consolidation or centralism.

But the philosophy, the theory of government, the understanding of the framers of the constitution, must be considered, if the expression will be allowed, as obiter dicta, and be judged on their merits. What binds is the thing done,

not the theory on which it was done, or on which the actors explained their work either to themselves or to others. Their political philosophy, or their political theory, may sometimes affect the phraseology they adopt, but forms no rule for interpreting their work. Their work was inspired by and accords with the historical facts in the case, and is authorized and explained by them. The American people were not made one people by the written constitution, as Mr. Jefferson, Mr. Madison, Mr. Webster, and so many others supposed, but were made so by the unwritten constitution, born with and inherent in them.

CHAPTER XI.—CONSTITUTION OF THE UNITED STATES, CONCLUDED.

PROVIDENCE, Or God operating through historical facts, constituted the American people one political or sovereign people, existing and acting in particular communities, organizations, called states. This one people organized as states, meet in convention, frame and ordain the constitution of government, or institute a general government in place of the continental congress; and the same people, in their respective state organizations, meet in convention in each state, and frame and ordain a particular government for the state individually, which in union with the general government, constitutes the complete and supreme government within the states, as the general government, in union with all the particular governments, constitutes the complete and supreme government of the nation or whole country. This is clearly the view taken by Mr. Madison in his letter to Mr. Everett, when freed from his theory of the origin of government in compact.

The constitution of the people as one people, and the distinction at the same time of this one people into particular states, precedes the convention, and is the unwritten constitution, the providential constitution, of the American people or civil society, as distinguished from the constitution of the government, which, whether general or particular, is the ordination of civil society itself. The unwritten constitution is the creation or constitution of the sovereign, and the sovereign providentially constituted constitutes in turn the government, which is not sovereign, but is clothed with just so much and just so little authority as the sovereign wills or ordains.

The sovereign in the republican order is the organic people, or state, and is with us the United States, for with us the organic people exist only as organized into states united, which in their union form one compact and indissoluble whole. That is to say, the organic American people do not exist as consolidated people or state; they exist only as organized into distinct but inseparable states. Each state is a living member of the one body, and derives its life from its union with the body, so that the American state is one body with many members; and the members, instead of being simply individuals, are states, or individuals organized into states. The body consists of many members, and is one body, because the members are all members of it, and members one of another. It does not exist as separate or distinct from the members, but exists in their solidarity or membership one of another. There is no sovereign people or existence of the United States distinguishable from the people or existence of the particular states united. The people of the United States, the state called the United States, are the people of the particular states united. The solidarity of the members constitutes the unity of the body. The difference between this view and Mr. Madison's is, that while his view supposes the solidarity to be conventional originating and existing in compact, or agreement, this supposes it to be real, living, and prior to the convention, as much the work of Providence as the existence in the human body of the living solidarity of its members. One law, one life, circulates through all the members, constituting them a living organism, binding them in living union, all to each and each to all.

Such is the sovereign people, and so far the original unwritten constitution. The sovereign, in order to live and act, must have an organ through which he expresses his will. This organ, under the American system, is primarily the convention. The convention is the supreme political body, the concrete sovereign authority, and exercises practically the whole sovereign power of the people. The convention persists always, although not in permanent session. It can at any time be convened by the ordinary authority of the government, or, in its failure, by a plebiscitum. Next follows the government created and constituted by the convention. The government is constituted in such manner, and has such and only such powers, as the convention ordains. The government has, in the strict sense, no

political authority under the American system, which separates the government from the convention. All political questions proper, such as the elective franchise, eligibility, the constitution of the several departments of government, as the legislative, the judicial, and the executive, changing, altering, or amending the constitution of government, enlarging or contracting its powers, in a word, all those questions that arise on which it is necessary to take the immediate orders of the sovereign, belong not to the government, but to the convention; and where the will of the sovereign is not sufficiently expressed in the constitution, a new appeal to the convention is necessary, and may always be had.

The constitution of Great Britain makes no distinction between the convention and the government. Theoretically the constitution of Great Britain is feudal, and there is, properly speaking, no British state; there are only the estates, kings, lords, and commons, and these three estates constitute the parliament, which is held to be omnipotent; that is, has the plenitude of political sovereignty. The British parliament, composed of the three estates, possesses in itself all the powers of the convention in the American constitution, and is at once the convention and the government. The imperial constitution of France recognizes no convention, but clothes the senate with certain political functions, which, in some respects, subjects theoretically the sovereign to his creature. The emperor confessedly holds his power by the grace of God and the will of the nation, which is a clear acknowledgment that the sovereignty vests in the French people as the French state; but the imperial constitution, which is the constitution of the government, not of the state, studies, while acknowledging the sovereignty of the people, to render it nugatory, by transferring it, under various subtle disguises, to the government, and practically to the emperor as chief of the government. The senate, the council of state, the legislative body, and the emperor, are all creatures of the French state, and have properly no political functions, and to give them such functions is to place the sovereign under his own subjects! The real aim of the imperial constitution is to secure despotic power under the guise of republicanism. It leaves and is intended to leave the nation no way of practically asserting its sovereignty but by either a revolution or a plebiscitum, and a plebiscitum is permissible only where there is no regular government. The British constitution is consistent with itself, but im

poses no restriction on the power of the government. The French imperial constitution is illogical, inconsistent with itself as well as with the free action of the nation. The American constitution has all the advantages of both, and the disadvantages of neither. The convention is not the government like the British parliament, nor a creature of the state like the French senate, but the sovereign state itself, in a practical form. By means of the convention the government is restricted to its delegated powers, and these, if found in practice either too great or too small, can be enlarged or contracted in a regular, orderly way, without resorting to a revolution or to a plebiscitum. Whatever political grievances there may be, there is always present the sovereign convention competent to redress them. The efficiency of power is thus secured without danger to liberty, and freedom without danger to power. The recognition of the convention, the real political sovereign of the country, and its separation from and independence of the ordinary government, is one of the most striking features of the American constitution.

The next thing to be noted, after the convention, is the constitution of the government by the convention. This constitution, as Mr. Madison well observes, divides the powers conceded by the convention to government between the general government and the particular state governments. Strictly speaking, the government is one, and its powers only are divided and exercised by two sets of agents or ministries. This division of the powers of government could never have been established by the convention if the American people had not been providentially constituted one people, existing and acting through particular state organizations. Here the unwritten constitution, or the constitution written in the people themselves, rendered practicable and dictated the written constitution, or constitution ordained by the convention and engrossed on parchment. only expresses in the government the fact which preëxisted in the national organization and life.

It

This division of the powers of government is peculiar to the United States, and is an effective safeguard against both feudal disintegration and Roman centralism. Misled by their prejudices and peculiar interests, a portion of the people of the United States, pleading in their justification the theory of state sovereignty, attempted disintegration, secession, and national independence separate from that of the

VOL. XVIII-9