« ZurückWeiter »
$ 514. PROPOSITION 7TH. The principle of the government is the virtue of the people.
This follows from several considerations: in a despotism or monarchy, he who executes the laws also makes them; but in a popular government, he who executes the laws is also subject to them. The monarch, then, who by bad counsel or negligence allows the laws to go unexecuted, may easily repair the evil by changing his counsellors, or correcting his negligence. But when, in a popular government,' the laws cease to be executed, as this can happen only from corruption, the state is already lost. Thus, when after the death of Charles I. the English attempted to establish a republic, they could not, because those who took part in public affairs had no virtue, and one party was continually opposed and put down by another, till at last, the people seeking a democracy, and finding they had no part in it, reposed upon the same government they had before proscribed. Thus also in Rome,—when Sylla offered the people liberty, they would not accept it because they had not virtue enough: and ever after, when despotism became intolerable, they struck a blow at the tyrant, but never at the tyranny. They had not virtue enough to change the form of government.
Thus also will it be with the people of the United States when they become corrupted. For half a century, the Constitution and laws have been executed and respected, because the people have retained a portion of the same civic virtues which preserved their country in the Revolution, and rescued it from the hands of hereditary corruption; but, when ever the people shall have become so insensible to vir tue as to allow men to triumph over laws, they will be corrupt, and the republic lost.
§ 515. PROPOSITION 8TH. The Constitution of the United States proceeds from the people in their sovereign capacity.
1 Montesquieu's Spirit of Laws, book 3, chap. 3.
By the 7th Article of the Constitution it was to become valid, among the parties to it, when ratified by the conventions of nine states; accompanying the Constitution was a resolution of the convention forming it, that it be laid before Congress, with a recommendation that it sbe submitted to a convention of delegates, chosen in each state by the people thereof, for their assent and ratification.” Agreeably to this recommendation and the article above cited, it was referred to conventions of the people, within their several states ; these conventions came from the people in their original, sovereign, social capacity; they were assembled without any other form than what they imposed upon themselves, without any limits as to the authority they should either give or take away, and in the name of the people only gave their assent to the proposed government; all these ratifications were made in the name of the people, and not the states. Without these ratifications the instrument would have been invalid, and with them it received all the authority of a limited government over the people and the states. Hence, it is obvious, that the Constitution proceeded from the people in their sovereign capacity.
$ 516. PROPOSITION 9TH. The Constitution of the United States acts upon both individuals and states.
That it acts upon states imperatively is obvious enough; for every article of the Constitution refers to states, and requires something to be done by them, or prohibits them from doing something. Thus, by Art. 1, Sect. 3, they are required to choose senators; by Sect. 4, to prescribe the times, places, and manner of holding elections for senators and representatives, and by Sect. 10, are prohibited every act which appertains to national sovereignty.
It acts upon individuals thus: by the powers vested in Congress by Art. 1, Sect. 8, individuals may be sub
1 Elliott's Debates, 247, 248.
jected, by the laws of the United States, directly to taxation, to militia service, to the rules of naturalization, to rules for the punishment of felonies on the high seas,and also through the powers for the regulation of commerce and for regulating the coinage: in all these, and in many other respects, the Constitution and laws of the United States act directly on individuals.
§ 517. PROPOSITION 10TH. The Constitutions of the states act upon individuals, but not upon the government of the United States, nor upon each other.
1. They act upon individuals, because nearly all the state legislation is municipal, and refers to individuals only. Thus, the establishment of municipal courts, the organization of juries, the division of towns, the incorporation of local societies, and local taxation, all emanate from the state laws. 2. They do not act upon each other, because, as it respects each other, the states are all precisely equal, and have no authority over one another; it is no exception to this, that the Constitution has given a judgment in one state full force and validity in another; for this is a consequence of national, not state laws; even foreign judgments are prima facie evidence in other countries. 3. They cannot exercise any power over the national government, for that would place the national government at the mercy of any one of the states, and would be inconsistent with its existence. Thus the state governments cannot tax the stocks of the United States government, nor any of the constitutional means employed by government for constitutional ends.'
§ 518. PROPOSITION 1176. The government of the United States is not a mere league.?
The proof of this may be found, 1st, in the intention of those who framed the Constitution; and 2dly, from the powers vested in the framers of it.
1 M‘Cullough vs. State of Maryland, 4 Wheaton, 316.
The evil intended to be remedied was that of a confederation, or league without a sanction, and consequently without the means of enforcing its decrees. Such a confederation is in theory weak, and all experience has proved it so. By the third article of the old Confederation, the nature of it was defined, and characterized as a “firm league of friendship for each other, for their common defence, the security of their liberties, and general welfare." The powers of the Confederation, or League, were vested in a Congress, without a Judiciary, and without an Executive; in this Congress, the states were represented in their sovereign capacity, and treated with each other as with foreign nations;
people, moreover, were in no manner amenable to the judgments of the Congress; that body had no power over them; they were answerable only to their state governments; this Confederation, then, had no feature of a government, and was in fact a simple meeting of ambassadors, vested with more than ordinary powers. This, then, was the evil to be remedied,—the want of a government. Looking then to the existing evil, and to the object in view, we should conclude, a priori, that the Constitution thus formed, was intended to be a government, and not a league. 2dly. But, if we go further, and look to the actual instructions of the delegates, we shall find, that the intention was to constitute a government, and preserve the union. Thus, the express words used in the credentials of the delegates from Connecticut, NewYork, and New-Jersey, were to take such measures as were necessary to render the federal Constitution adequate to the exigencies of the government and the preservation of the union." And such was the substance of the instructions from the majority of the states. Hence, we see that the intention was to form a government, and not a league.
§ 519. But 2dly. That they did form a government, and not a league, appears from the terms of the Consti
tution; for by the articles of confederation, and those of all leagues, purporting to be such, the states constituting them reserved to themselves an equal vote in the Congress; indeed, this is of the essence of all leagues; but, by the Constitution of the United States, the states have not an equal vote in the Congress, but in the House of Representatives vote by numbers, and in the Senate, though the representation is equal, the vote is by persons. Again, the acts of leagues bind only the states that compose them, and do not operate on persons. In the Constitution of the United States, however, the laws operate not only upon the states, but, as we have shown by Proposition 9th, upon the people at large, and individually. Besides these considerations, the division of the powers granted, into Executive, Legislative, and Judicial,—the mode of electing the President, and the careful construction of the Judiciary, all incontestibly prove that the Constitution constitutes a government, and not a league.
§ 520. PROPOSITION 12TH. The government of the United States is sovereign in its national
capacity. By our first definition, sovereignty is the highest power in a state; and for a state or nation to be sovereign, it must govern itself, and be independent of other powers. Now, if we apply these characteristics to the government of the United States, we find that it possesses them all. 1st. It is the highest power in a national sense, because it is the only power which, in the United States, can exercise national authority; it is the only power which can lay taxes upon all the states; the
1 Note.—The obvious intention and understanding of the framers of the Constitution upon this point, might be illustrated by the quotation of many passages. I shall only give one.
“A government by compact is no government at all. You may as well go back to your congressional federal government, where, in the character of ambassadors, they may form treaties for each state."
Mr. Morris' bates the Federal Convention. 3 Vattel's Law of Nations, p. 16.