was federal, and the States retained their sov-
ereignty, simple and pure, without delega-
ting any portion thereof to the common
agent,
I refer to Elliot's Debates, 1st volume, page
79, and article 2d of the Articles of Confede-
ration :
"Bach State retains its sovereignty, free-
dom, independence, and every power, juris-
diction and right which is not by this Con-
federation expressly delegated to the United
States in Congress assembled."
There is a delegation of certain powers,
but a retention of its sovereignty, its free-
dom and independence. The Articles of Con-
federation show this. Article 3d says :
" The said States hereby severally enter in-
to a firm league of friendship with each other,
for their common defence, the security of
their liberties, and their mutual and general
welfare, binding themselves to assist each
other against all force offered to, or attacks
made upon them, or any of them, on account
of religion, sovereignty, trade, or any other
pretence whatever."
But that system of 'government soon be-
came inadequate, and in a mode different from
that provided for in the Articles of Confede-
ration, they formed a Constitution and crea-
ted thereby, I assert, a government, and gave
it power to enforce its mandates by direct ac-
tion on individuals composing the States.
This government was no longer simply fede-
ral, as under the old Articles of Confedera-
tion, but partook also of a national character.
I refer on this point to the Federalist, No. 39,
page 179.
" The prepared Constitution, therefore, even
when tested ley the rules laid down by its an-
tagonists is, in strictness, neither a national
nor a federal Constitution, but a composition
of both. in its foundation it is federal, nut
national; in the sources from which the or-
dinary powers of the Government are drawn,
it is partly federal and partly national. In
the operation of those powers, it is national,
not federal, in the extent of these again, it
is federal, not national." No. 39, Federalist.
It was formed by the people of the States,
not acting as an aggregate whole. I refer on
this point to tire same authority I have quoted
on several occasions, for I know of none
which ought to be regarded as higher.
" It is to be the assent and ratification of
the several States, derived from the supreme
authority in each Sate, the authority of the
people themselves. The act, therefore, es-
tablishing the Constitution, will not be a na-
tional, but a federal act. * * * * *
It is to result neither from the decision of a
majority of the people of the Union, nor from
that of a majority of the States. It must re-
sult from the unanimous consent of the seve-
ral States that are parties to it, differing no
otherwise from their ordinary assents than in
its being expressed, not by the legislative au-
19 |
thority, but by that of the people themselves.
Were the people regarded in this transaction
as forming one nation, the will of the whole
people of the United States would bind the mi-
nority; and the will of the majority must be
determined either by a compromise of the in-
dividual votes, or by considering the will of
the majority of the States, as evidence of
the will of the majority of the people of the
United States. Neither of these rules has
been adopted. Each State, in ratifying the
Constitution, is considered as a sovereign
body, independent of all others, and only
by its own voluntary act." Federalist,
No. 39, pages 176 and 177.
Mr. PUGH. What authority is that?
Mr. CLARKE. The Federalist. Does the
gentleman accept that as authority ?
Mr. PUGH. I thought it was Calhoun.
Mr. CLARKE. No sir. it is Mr. Madison,
who did more than any other man living in
his day to make this Constitution.
It was not adopted by a majority of the
whole people of the United States. The pre-
amble, '' we, the people of the United States,"
means, "we, the people of the several united
States," and, upon this point, refer to El-
liott's Debates, volume 1, page 224, where the
first and original draft of the Constitution is
given in this form :
" 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."
That was the form in which the draft was
brought in It was then referred lo a reviso-
ry committee, and that revisory committee
put it in the present form, " we, the people of
the United States do ordain, &c." The
change was made upon this suggestion, that
if, in the preamble, you included all the States
by name, and it should so happen some of
the States or the people thereof, not being
bound by a majority of the people of the
States, or a majority of the States, but each
State having the right to determine for itself
that any State did not ratify it, there would
be a preamble providing a form of govern-
ment for a State which did not come within
the provision of the Constitution; and to
meet that objection, and with no view of alter-
ing the meaning or construction of the Con-
stitution, it was put in this form, and the
truth of history is this: that Rhode Island
remained for several years a separate and dis-
tinct sovereign State, no part of this Govern-
ment, and Maryland was one of the last to
ratify the Constitution, but stood out upon
the question of equality of territory, and not
until that question was settled, of the perfect
equality of the common territory, won by the
common blood and the common treasure, did |
