108.

tution.

But then the latter must have this advantage, that it will always prove the less dangerous and difficult, and generally also the more certain of its object; requiring at first no open employment of force; being easily concealed under specious pretensions to the public weal, so as to be nowhere observed; unless in the pretexts of power for assuming greater power-for restraining the liberty of speech and assuming control of the press; for gradually increasing the government force, and largely distributing the public purse; by the former of which means, the masses of the people (who too seldom think for themselves) are easily educated to the new idea (whatever that may be), while by the latter a loyal and zealous support is at once obtained from such as are willing to barter their liberties for the favors of a prince.

As an instance and apt illustration of the grounds on The preamble which the imperial theory is placed, we again refer to the to the consti- language of the preamble to the federal constitution; We, the people of the United States, . do ordain and establish this constitution for the United States of America.' 'Here,' says Mr. Pomeroy, 'is the calm, sublime statement of self-existence, of inherent and unlimited power,—a power of national and fundamental legislation for the purposes of protection to themselves as A BODY POLITIC, and not to the states as separate political societies. This is the rock upon which many of the great champions of nationality among American statesmen have planted themselves in their conflicts with opposing schools, and from which they were never dislodged by the fiercest assaults of extreme or moderate partisans of state sovereignty."

109.

It is difficult to believe that the learned 'professor of How it orig- political science in the University of New York,' who proinally stood, posed 'to deal with plain historical facts, not with theories, and why nor with disputed questions of intention,' was really ignochanged. rant of the history of this 'rock.' Every one knows, or

1 Pomeroy's Const. Law, & 94.

ought to know, that, as originally penned and unanimously passed by the convention that framed it, the preamble read-We, the people of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, do ordain, declare and establish, the following Constitution, for the government of ourselves and our posterity." The change of this expression of the organic will, to that of ' We, the people of the United States,' etc., was proposed by a sub-committee on style. And wherefore? Because, it could not be foreknown, which of the STATES would accept and ratify the new constitution. If any nine of them should do so, they, at all events, according to the last article of the instrument, would thence become the United States of America. Hence the committee on style revised the language of the convention, and substituted the United States,' in place of 'the States of New Hampshire, Massachusetts, Rhode Island,' etc.

This is explained by Mr. Curtis, in his History of the Constitution.3

1 Elliot's Debates, Vol. 1, 230–231.

2 It may be asked, why was the word 'people' employed? The following extract (among many others that might be given) from The Federalist, will answer this question. 'It has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the PEOPLE. Resting on no better foundation than the consent of the several legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers; and has, in some instances, given birth to the enormous doctrine of a right of legislative repeal. Owing its ratification to the law of a state, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a party to a compact has a right to revoke that compact, the doctrine itself has had respectable advocates. The possibility of a question of this nature, proves the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of THE CONSENT OF THE PEOPLE. The streams of national power ought to flow immediately from that pure original fountain of all legitimate authority.' The Federalist, No. 22, 103.-Hamilton.

p.

3 Vol. I, b. 4, c. 8, pp. 181-182.

110. Mr. Curtis's explanation.

The States, in their corporate capacities, and through the agency of their respective Governments, were parties to a Federal system, which they had stipulated with each other, should be changed only by a unanimous consent. The Constitution, which was now in the process of forma tion, was a system, designed for the acceptance of the people of all the States, if the assent of all could be obtained; but it was also designed for the acceptance of a less number, than the whole of the States, in case of a refusal of some of them; and it was at this time highly probable that at least two of them would not adopt it. Rhode Island had never been represented in the Convention; and the whole course of her past history, with reference to enlargements of the powers of the Union, made it quite improbable that she would ratify such a plan of Government as was now to be presented to her. The State of New York had, through her Delegates, taken part in the proceedings, until the final decision which introduced into the Government a system of popular representation; but two of those Delegates, entirely dissatisfied with that decision, had withdrawn from the Convention, and had gone home to prepare the State for the rejection of the scheme. The previous conduct of the State had made it not at all unlikely that their efforts would be successful. Nor were there wanting other indications of the most serious dissatisfaction, on the part of men of great influence in some of the other States. Unanimity had already become hopeless, if not impracticable; and it was necessary, therefore, to look forward to the event of an adoption of the system by a less number than the whole of the States, and to make it practicable for a less number to form the new Union for which it provided. This could only be done by presenting it, for ratification, to the people of each State, who possessed authority to withdraw the State Government from the Confederation, and to enter into new relations. with the people of such other States as might, also, withdraw from the old, and accept the new system.' So much for the Gibraltar of the imperial theory.1

1 'In the most recent times,' says Mr. Pomeroy, 'this theory has been

THE FEDERAL THEORY.

8 111. Federal

theo

the constitu

It was formerly shown, that the only possibility of a developed with great precision and fullness by writers and juridical ry-views of students of eminent ability and learning. Among these may be mentioned John Codman Hurd, in his "Essay on the Law of Freedom and the framers of Bondage in the United States; " O. A. Brownson, in his "American Republic," and George P. Marsh, in a series of letters communicated to the "Nation." With all deference to these able and learned writers, and to some others who have followed in their train, I must beg leave to say, that they have failed to develop the imperial theory in so perfect a manner as Mr. Pomeroy himself has done.

The seeds of the imperial theory, were, without doubt, originally sown by some of the Nationals (after the defeat of their scheme in the convention that framed the federal constitution) by way of attempting a construction of that instrument which should favor the sovereignty of the general government. One of the earliest of the efforts made toward such a construction, after the adoption of the constitution, was that of John Jay, when, in 1793, as the first chief justice of the United States, he delivered his opinion in the important case of Chisholm Ex'r v. Georgia (reported in 2 Dall. 470, et seq). One or two paragraphs of that opinion, will show the method and grounds of argument originally taken. He therein says:-'In determining the sense in which Georgia is a sovereign State, it may be useful to turn our attention to the political situation we were in, prior to the Revolution, and to the political rights which emerged from the Revolution. All the country now possessed by the United States, was then a part of the dominions appertaining to the crown of Great Britain. Every acre of land in this country was then held mediately or immediately by grants from that crown. All the people of this country were then subjects of the King of Great Britain, and owed allegiance to him; and all the civil authority then existing or exercised here, flowed from the head of the British Empire. They were in the strict sense fellow subjects, and in a variety of respects one people.' . . . . . 'The Revolution, or rather the Declaration of Independence, found the people already united for general purposes, and at the same time providing for their more domestic concerns by State conventions and other temporary arrangements. From the crown of Great Britain, the sovereignty of the country passed to the people of it; and it was then not an uncommon opinion, that the unappropriated lands which belonged to that crown, passed not to the people of the Colony or State within whose limits they were situated, but to the whole people; on whatever principle this opinion rested, it did not give way to the other, and [although] thirteen sovereignties were considered as emerged from the principles of the Revolotion, combined with local convenience and considerations, the people nevertheless continued to consider themselves, in a national point of view, as one people; and

tion.

UNION OF STATES as such, is the possibility of an organic law of their union, which shall determine and fix the

they continued without interruption to manage their national concerns accordingly: afterwards in the hurry of the war, they made a Confederation of the States the basis of a General Government. Experience disappointed the expectations they had formed from it; and then the people in their collective and national capacity, established the present Constitution. It is remarkable that in establishing it, the people exercised their own rights, and their own proper sovereignty, and conscious of the plentitude of it, they declared, with becoming dignity, "We, the people of the United States, do ordain and establish this Constitution." Here we see the people acting as sovereigns of the whole country; and in the language of sovereignty, establishing a Constitution by which it was their will, that the State Governments should be bound, and to which the State Constitutions should be made to conform. By this great Compact, however, many prerogatives were transfered to the National Government, such as those of making war and peace, contracting alliances, coining money, etc. At

the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves among us may be so called) and have none to govern but themselves; the citizens of America are equal as fellow citizens, and joint tenants in the sovereignty.'

The foundation of the theory in question, then, is the assertion of three things as facts; viz:

1. That the Anglo-American people were originally British subjects, and as such, were a portion of one and the same political society, nation or state, namely, that of Great Britain; which political society, however, so far as it concerned the American portion thereof, was dissolved and ended by the American Revolution.

2. That the Revolution was accomplished in pursuance of authority delegated by the American portion of that political society, this American portion acting in the character and capacity of a single new political state; and thereupon the sovereignty of the country passed, from the crown of Great Britain, to this new political society, to the American people in their new capacity of a single political body.

3. That the constitution of the United States was ordained and established by 'the people of the United States,' the people acting as coequal members of a single political community, that is to say, as the single new political state, which had from the beginning assumed the sovereignty of the country.

Now the first proposition is true to the letter. But the second and third are mere inventions, idle fictions; which, however 'played off with the ingenious dexterity of political legerdemain,' are wholly at variance with the facts of our history, as everyone knows or ought to know; but which, nevertheless, must be either ignorantly or perversely asserted as true by every advocate of this scheme of absolute government in America.