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this nation, taking into their most serious consideration, the best means for attaining the ends aforesaid, do in the first place, (as their ancestors in like cases have usually done,) for the vindicating and asserting their ancient rights and liberties, declare," &c. "And they do claim, demand, and insist, upon all and singular, the premises, as their undoubted rights and liberties, and that no declarations, judgments, doings and proceedings, to the prejudice of the people in any of the said premises, ought in any wise to be drawn hereafter, into consequence or example." William and Mary are then declared king and queen of England, &c. "And that the oaths hereafter mentioned, be taken by all persons of whom the oaths of allegiance and supremacy might be required by law instead of them; and that the said oaths of allegiance and supremacy be abrogated." The new oath of allegiance was to king William and queen Mary. In the oath of supremacy is this clause. "And I do declare, that no foreign prince, prelate, state, or potentate, hath or ought to have, any jurisdiction, power, superiority, preheminence, or authority, ecclesiastical or spiritual, within this realm." 10 Journ. Comm. 289; 14 Journ. Lords, 124, 5; 3 Ruff. 440, 42.

This declaration has never been misunderstood in England; no lawyer or judge has ever held, that the two conventions were one, that the people they represented were one; but the contrary; the declaration has, by the assent of all, been taken to be what it says it is in the heading, the act of the lords and commons, assembled pursuant to their respective letters, which were addressed by the prince to the house of lords, separately, from the one to individuals merely. By the fundamental law of the kingdom both could not form one body. The lords represented the two estates of the nobility and clergy; once lords, they remained so though the throne was vacant. They sat in their own right, representing themselves and property, as two estates or states of the nation or realm, wholly distinct from the third estate or state; that estate was the whole body of the people, represented in the convention of the commons. As there was no king, there could be no parliament, or house of commons in any other capacity than in a convention; those persons who had been members of parliament were no longer so, hence the letter addressed to them was not to assemble as a constituent part of a parliament, but to call a convention, to be composed of representatives of the people of the counties, &c. to be elected by the same electors of the several places who voted for members of the house of commons, and for the same number. Thus the estates of the kingdom remained distinct as before, when there existed a parliament in all its parts; the two conventions acting separately and concurring in opinion, made one declaration, to which they had separately agreed, as separate conventions, who were a full representation of the nation, of the three estates thereof, lords spiritual, temporal, and commons. They did not represent the head of the state, the king, because there was none; hence they used the term nation, not kingdom, as there could be none without a head, nor es

tates of the kingdom, when for the want of the executive power there was no government in existence. But those three estates embraced the whole nation, in all its component parts, though not the state in its supreme corporate capacity; 1 Bl. Com. 147; yet parts of the nation, empire, or the realm; 1 Bl. Com. 242; consisting of the clergy and nobility, or lords, and the people, or commons, who were the nation. Now it is most strange, that when we compare these proceedings with those which commenced in the colonies, in 1774, from the first assembling of congress, till they made "a declaration" of rights and wrongs, and entered into "an association," preparatory to a revolution; and from that time to July, 1776, when the revolution being effected, and the colonies had in fact became states, and made "the unanimous declaration of the thirteen United States of America," announcing that fact to the world; that both declarations patterned from the declaration of 1688, throughout, and in many parts copied, should be taken to be the declarations of one people, in a congress, representing one nation, instituting a national government thereof; and not as thirteen colonies or states una animo, declaring each to be a free and independent state, when the name of each was affixed, signed by their separate agents, calling themselves their representatives. It is equally strange, when in 1781, the same states by "articles of confederation and perpetual union" between them, naming each, entered into a confederacy or league of alliance, the style of which was "the United States of America," the second article whereof declared, "each state retains its freedom, sovereignty, and independence, and every power, jurisdiction and right which is not by this confederation expressly delegated to the United States in congress assembled;" and by the third article, "the said states hereby severally enter into a firm league of friendship with each other," &c.; that there then existed an unity of political power, in the people and government of one state or nation, compounding the people, and power of all the states, into one, from 1776; so that no particular state had any power, right, or jurisdiction to retain to itself, or delegate to the United States. It is stranger still that it should be asserted, that congress acted as the representatives of one people, state, or nation; when it is an admitted fact, that the first rule adopted by the congress of 1774, was, "Resolved, That, in determining questions in this congress, each colony or province shall have one vote." 1 Journ. 11. So it continued till the confederation which declared, "each state shall have one vote;" 1 Laws U. S. 14; and so it remained till the old congress was dissolved, in 1788, by the adoption of the constitution by nine states, each having one vote in a convention of the people thereof.

If there can be a political truth, it would seem to be this, that where, in a body composed of sixty-five members, there could be only thirteen votes, if all the states were present, and there must be one vote less for each state that was absent; that the body did not, and could not represent, and act for all the states and the whole people, as a national legislature," serving for the whole realm," nation,

or state. They were a mere congress of states, colonies, or provinces; the legislature of each of which was the separate constituent of its own deputies, or "ambassadors," who gave the vote of their sovereign," and not their own; and, therefore, could by no political possibility, be a legislature in any political sense, as the representatives of a people in their aggregate collective capacity.

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THE PERVERSION OF THE TE
TERM THE PEOPLE IN THEIR AGGRE-
GATE OR COLLECTIVE CAPACITY."

If any thing connected with the construction of the constitution can be deemed a bold and unwarranted theory, or extravagant doctrine, it is in the application of the remarks of Mr. Justice Blackstone, in 1 Bl. Com. 158, 9, before quoted, as to the people of a small state, such as "the petty republics of Greece, and the first rudiments of the Roman state." There, he says, the people legislated "in their aggregate or collective capacity;" which term he uses in contrast with legislative powers exercised by representation of the people in a large state: the power is the same in the people of a large or small state; the only difference is in the mode of its exercise: in the latter case it is in their primary assemblies, in the former by representatives, elected to act as their agents by their authority. Now, when we find a term used in reference to a petty state, whose whole territory was not as large as a county in one of the states, or its population equal to many towns or cities, applied to the establishment of a government of this Union, of an almost boundless extent; the utter fallacy of any proposition founded upon it, is self-evident. It never has been true, in fact, that the people of any of the states assembled to make laws, in any other way than by representation; the people of Athens would meet at the Areopagus, and of Rome at the Capitol, to make laws or decrees; but the people of England or the United States never so met. When their action is in their primary assemblies, as an aggregate or collective body, it is, and always has been, either to express their opinion, or exercise the elective franchise in choosing their representatives; this is done, as Blackstone says, in designated districts; for, in a large state, the people must do that by representatives, which they cannot do in person; that is, legislate by their duly selected agents, and not personally. No lawyer in Westminster Hall would venture to assert, that the ordinances of the convention of 1688, were the acts of the people of the kingdom, in their "aggregate or collective capacity;" as the people of Athens or Rome, when in an assembly, they would put down one ruler and appoint another, or change their form of government. No commentator on the constitution of England, has ever confounded the action of the people of a county or city, in the election of the members of a convention, with the action of the convention by its ordinances; and no theorist has been hardy enough to take the position, that when the people act in a convention of their representatives, they act at the same time in their individual capacity. In England, at least, there is an agreed distinction between the con

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stituent and the agent; between a body composed wholly of constituents, and another body of mere agents; between electing the agents for ordaining a fundamental law, and its enaction by those agents under their delegated authority. There, too, the nature of a representative government appears, in the opinion of their jurists and statesmen, as it does in its practical operations; fact, principle, and theory, point to the same original source of power; and " political dreamer" thinks of compounding the people or the estates of the kingdom, into one mass, or one estate. Their unwritten constitution is clearly understood; the powers of all corporations or bodies politic are accurately defined, whether they relate to government or other matters; and voluminous as the reports of their judicial proceedings are, we seldom see one which involves a question of constitutional power, in any department or office of government.

How different the case is here needs no further explanation than what is afforded by our judicial and political history; we have not yet attained a knowledge of the power on which the federal government rests; the meaning of the preamble of the constitution is unsettled; and as we trace it to the bodies which adopted it, the difficulty thickens. A great question is at the threshold, and must be removed, before we can examine the interior of the structure. All admit, that in fact, the constitution was established by the ratification of the people of the several states, in separate conventions or representatives, whom they elected in the respective counties: yet the preponderance of political and professional authority, is in favour of the proposition, that it was the act of the people in their collective capacity. When this shall become settled doctrine, it will be seen how much better the nature and science of government is now understood, than it has been in England; and was understood by the congresses and conventions of these states, from 1774 till 1787. It will also illustrate the happy effects which flow from the great fundamental principle of the American system of government-the certainty of a written constitution.

The congress of the revolution, and the convention of 1787, were ignorant of any other legislative power than that of the separate states. It is attributing to the members of congress in 1777, the most utter and profound ignorance of the nature and powers of the government of the revolution, which they themselves administered for five years, if it was such an one as commentators now hold it to have been. In the letter recommending it to the states to adopt the articles of the confederation, they say, "Every motive calls upon us to hasten its conclusion;" "it will add weight and respect to our councils at home, and to our treaties abroad." "In short, this salutary measure can be no longer deferred. It seems essential to our very existence as a free people, and without it we may soon be constrained to bid adieu to independence, to liberty, and to safety," &c. 1 Laws U. S. 13. The remedy was far worse than the disease, according to modern theory; but the practical statesmen and jurists of the day, deemed it of vital importance to have a government in form,

or state. They were a mere congress of states
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THE VIEWS OF THE GENERAL CONVENTION OF 1787, AND THE It would also be an imputation of political treachery to the states, government, which in all its provisions explicitly declared the sepawho were the constituents of that convention, to draw up a frame of rate existence and action of " the people of the several states, and of each state," in all the movements of the government, in all time, in language admitting of no twofold interpretation; And then prefixing to it a declaration, by which the states, in their most sovereign capain separate conventions of the people, are made to admit and acknowledge, that "the absolute sovereignty" in matters of government, was not, and from July, 1776, had not been invested in the people of the separate states; and that they had, at the adoption of the constitution, only such "residuary sovereignty,' as remained after a paramount power had made a supreme law over them. Had the convention so announced it to the congress, the legislatures, or the people of the states, in proposing its ratification; there would have been a fifth unanimous declaration of the rights of the states and people; not only of rights, but of wrongs and grievances, more aggravated than those which led to the revolution, because they were attempted by their own representatives, in violation of their instructions. No state convention would have convened; congress would have at once rejected the proposition, and in the name of each state declared, non in hæc federar venemur; they would have

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