which all the States guarded their sovereignty. The Northern States were quite as jealous, in this respect, as the Southern States. Next to Massachusetts, New Hampshire has been, perhaps, the most fanatical and bitter of the former States, in the prosecution of the late war against the South. That State, in her Constitution, adopted in 1792, three years after the Federal Constitution went into operation, inserted the following provision, among others, in her declaration of principles: “The people of this Commonwealth have the sole and exclusive right of governing themselves as a free, sovereign, and independent State; and do, and forever hereafter shall exercise and enjoy every power, jurisdiction, and right which is not, or may not hereafter be, by them, expressly delegated to the United States.”
Although it was quite clear that the States, when they adopted the Constitution of the United States, reserved, by implication, all the sovereign power, rights, and privileges that had not been granted away—as a power not given is necessarily withheld—yet so jealous were they of the new government they were forming, that several of them insisted, in their acts of ratification, that the Constitution should be so amended as explicitly to declare this truth, and thus put it beyond cavil in the future. Massachusetts expressed herself as follows, in connection with her ratification of the Constitution: “As it is the opinion of this Convention, that certain amendments and alterations in said Constitution would remove the fears, and quiet the apprehensions of the good people of the Commonwealth, and more effectually guard against an undue administration of the Federal Government, the Convention do, therefore, recommend that the following alteration and provisions be introduced in said Constitution: First, that it be explicitly declared, that all powers not delegated by the aforesaid Constitution are reserved to the several States, to be by them exercised.”
Webster and Story had not yet arisen in Massachusetts, to teach the new doctrine that the Constitution had been formed by the “People of the United States,” in contra-distinction to the people of the States. Massachusetts did not speak in the name of any such people, but in her own name. She was not jealous of the remaining people of the United States, as fractional parts of a whole, of which she was herself a fraction, but she was jealous of them as States; as so many foreign peoples, with whom she was contracting. The powers not delegated were to be reserved to those delegating them, to wit: the “several States;” that is to say, to each and every one of the States.
Virginia fought long and sturdily against adopting the Constitution at all. Henry, Mason, Tyler, and a host of other giants raised their powerful voices against it, warning their people, in thunder tones, that they were rushing upon destruction. Tyler even went so far as to say that “British tyranny would have been more tolerable.” So distasteful to her was the foul embrace that was tendered her, that she not only recommended an amendment of the Constitution, similar to that which was recommended by Massachusetts, making explicit reservation of her sovereignty, but she annexed a condition to her ratification, to the effect that she retained the right to withdraw the powers which she had granted, “whenever the same shall be perverted to her injury or oppression.”
North Carolina urged the following amendment—the same, substantially, as that urged by Virginia and Massachusetts: “That each State in the Union shall respectively [not aggregately] retain every power, jurisdiction, and right which is not by this Constitution delegated to the Congress of the United States, or to the departments of the Federal Government.”
Pennsylvania guarded her sovereignty by insisting upon the following amendment: “All the rights of sovereignty which are not, by the said Constitution, expressly and plainly vested in the Congress, shall be deemed to remain with, and shall be exercised by the several States in the Union.” The result of this jealousy on the part of the States was the adoption of the 10th amendment to the Constitution of the United States as follows: “The powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States, or to the people.”
It is thus clear beyond doubt, that the States not only had no intention of merging their sovereignty in the new government they were forming, but that they took special pains to notify each other, as well as their common agent, of the fact. The language which I have quoted, as used by the States, in urging the amendments to the Constitution proposed by them, was the common language of that day. The new government was a federal or confederate government—in the “Federalist,” it is frequently called a “Confederation”—which had been created by the States for their common use and benefit; each State taking special pains, as we have seen, to declare that it retained all the sovereignty which it had not expressly granted away. And yet, in face of these facts, the doctrine has been boldly declared, in our day, that the Constitution was formed by the people of the United States in the aggregate, as one nation, and that it has a force and vitality independent of the States, which the States are incompetent to destroy! The perversion is one not so much of doctrine as of history. It is an issue of fact which we are to try.
It is admitted, that if the fact be as stated by our Northern brethren, the conclusion follows: It is, indeed, quite plain, that if the States did not create the Federal Constitution, they cannot destroy it. But it is admitted, on the other hand, by both Webster and Story, as we have seen, that if they did create it, they may destroy it; nay, that any one of them may destroy it as to herself; that is, may withdraw from the compact at pleasure, with or without reason. It is fortunate for us of the South that the issue is so plain, as that it may be tried by the record. Sophistry will sometimes overlie reason and blind men’s judgment for generations; but sophistry, with all its ingenuity, cannot hide a fact. The speeches of Webster and the commentaries of Story have been unable to hide the fact of which I speak; it stands emblazoned on every page of our constitutional history.
Every step that was taken toward the formation of the Constitution of the United States, from its inception to its adoption, was taken by the States, and not by the people of the United States in the aggregate. There was no such people known as the people of the United States, in the aggregate, at the time of the formation of the Constitution. If there is any such people now, it was formed by the Constitution. But this is not the question. The question now is, who formed the Constitution, not what was formed by it? If it was formed by the States, admit our adversaries, it may be broken by the States.
The delegates who met at Annapolis were sent thither by the States, and not by the people of the United States. The Convention of 1787, which formed the Constitution, was equally composed of members sent to Philadelphia by the States. James Madison was chosen by the people of Virginia, and not by the people of New York; and Alexander Hamilton was chosen by the people of New York, and not by the people of Virginia. Every article, section, and paragraph of the Constitution was voted for, or against, by States; the little State of Delaware, not much larger than a single county of New York, off-setting the vote of that great State.
And when the Constitution was formed, to whom was it submitted for ratification? Was there any convention of the people of the United States in the aggregate, as one nation, called for the purpose of considering it? Did not each State, on the contrary, call its own convention? and did not some of the States accept it, and some of them refuse to accept it? It was provided that when nine States should accept it, it should go into operation; was it pretended that the vote of these nine States was to bind the others? Is it not a fact, on the contrary, that the vote of eleven States did not bind the other two? Where was that great constituency, composed of the people of the United States in the aggregate, as one nation, all this time?
“But,” say those who are opposed to us in this argument, “look at the instrument itself, and you will see that it was framed by the people of the United States, and not by the States. Does not its Preamble read thus: ‘We, the people of the United States, in order to form a more perfect Union, &c., do ordain and establish this Constitution for the United States of America’?” Perhaps there has never been a greater literary and historical fraud practised upon any people, than has been attempted in the use to which these words have been put. And, perhaps, no equal number of reading and intelligent men has ever before submitted so blindly and
