assent and ratification." The Constitution itself provided that, when ratified by at least nine states, it should become established in the states so ratifying the same."

The Convention also enforced their recommendation by a letter addressed to Congress and through them to the country, from which some extracts will be interesting. "In all our deliberations we kept steadily in our view that which appears to us the greatest interest of every true American, the con

solidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence. This important consideration, seriously and deeply impressed on our minds, led each state in the Convention to be less rigid, on points of inferior magnitude, than might have been otherwise expected; and thus, the Constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession which the peculiarity of our political situation rendered indispensable.'

§ 82. What was the real meaning of all these proceedings? The Convention knew that they were not amending the Articles of Confederation; for in that case the proposed alterations must be submitted to Congress, and then to the state legislatures, and approved by all; but in no instance would any direct reference to the people be necessary. They knew, on the contrary, that they were proposing a new government, and that in creating this government, neither they, nor Congress, nor the legislatures of the states, had the slightest power, the smallest voice; that such a creation was the work of the people alone, of the nation in its imperial capacity, by virtue of imperial powers which existed in them indissoluble and incommunicable, above and beyond all existing forms, all congresses, legislatures, and state organizations. To the people, then, they appealed. But the people could only express their will by voting, and to vote requires some organized method. The Convention itself could not provide means for taking, ascertaining, and publishing this vote, for they were, in fact, a mere body of volunteers, without any power except

1 Resolution of Convention, Elliot's Debates, Vol. 1, p. 16.
2 Constitution, Art. VII.

that moral influence which knowledge and worth always give. Nor could Congress make the provision, for this was an emergency which the Articles of Confederation had not anticipated; any attempt of Congress to submit the proposed plan to the people, would have been without warrant, a mere nullity. The state governments were the only bodies which possessed the requisite ability to call upon the people, duly and in order to register their supreme and sovereign decree in reference to the question before them, and thus to render the popular act legal in form as well as in substance. Therefore the Constitution was handed over to the various state legislatures as mere depositaries and agents, for them to submit to the people. Were this to be done in our own time, the submission would doubtless be direct; but ideas of popular government were not quite so advanced at the close of the last century as they are in our own day; and the only act of the people deemed possible was that of delegating their powers to special representatives who should meet and ratify the instrument in their name. This was the proceeding advised by the framers of the Constitution and followed by the state authorities. All were acting merely as the channels, the mechanical means, to ascertain, convey, and publish the will of the real nation.

§ 83. While the Constitution was before the people awaiting their approval, the friends and partisans of the state-sovereignty theory marshalled their forces and attacked it with a virulence and malignity of which we can now hardly form a conception. They understood the effect of the change; they knew that local power was slipping away from them, and that local pride. must be humbled before the majesty of the nation. But they felt that it would be unsafe to discuss the question of ratification from this standpoint alone, and therefore assailed the government as a mere scheme of tyranny. They declared that it would be destructive of all liberty. They pronounced the Executive to be worse than an absolute monarch, and predicted that he would soon be able to usurp all power, and to reign for life, without the aid of Congress and without reference to the people. These attacks called forth from the pens of Hamilton, Madison, and Jay, a series of letters since known.

as The Federalist, which exerted a most powerful influence in producing the final result, and which have been, and will remain, an authority to the courts, and a text-book to political students, one of the most complete and profound expositions of the science of government that has ever appeared.

§ 84. Conventions in eleven states having ratified the Constitution, Congress, on the 13th of September, 1788, took measures for the election of officers, and on the 4th of March, 1789, the present government commenced the exercise of its functions. North Carolina did not ratify until the 21st of November, 1789,2 and Rhode Island until the 29th of May, 1790.8

Having thus sketched the external history of the adoption of our Constitution, and examined the nature of the various acts which preceded that event, to the end that the true national character of the political society and of its organic law might be discovered, I shall, in the following chapter, interrogate the instrument itself with the same intent.

1 See the official ratifications of the several states, Elliot's Debates, Vol. 1, pp. 319-331.

2 Elliot's Debates, Vol. 1, p. 333.

3 Ibid. p. 334.

CHAPTER III.

THE NATIONAL ATTRIBUTES INVOLVED IN THE PROVISIONS OF THE CONSTITUTION.

SECTION I.

DISTINCTION BETWEEN THE GOVERNMENT AND THE NATION.

§ 85. In the preceding chapter I have spoken of those grand salient facts in the history of our people which seem to stamp a distinctive character upon our political society, — the combined revolt, the united declaration of independence, the subsequent receding from the high ground of nationality during the short and disastrous period of the Confederation, and the final return to the early and true idea of unity and nationality by the voluntary act of the people in pushing aside the crumbling fabric of government built on the foundation of state sovereignty, and adopting one emanating directly from themselves, as the expression of their organic will. We are now prepared to interrogate the Constitution itself, and to discover if the answers which it shall return accord with the principles and doctrines contained in the facts of our history.

§ 86. It is natural to expect that the work will represent, in some measure, the condition and thought of the artificer; and if the one people of these United States are the authors of an organic law, we may well ask if they have left any trace of their oneness and nationality in the product of their sovereign political action.

But here it is necessary to repeat and elaborate a general doctrine which has already been dwelt upon with some emphasis, and which must be constantly recalled to mind through the whole course of the present inquiry as the solution of many a difficulty and apparent contradiction. This truth is, the

absolute and necessary distinction between the nation which is the source of political power, and the government which is the creature of that power, established to act, in certain cases, instead of, or as the agent of, that nation.

§ 87. We affirm that the People of these United States are the nation, possessed of supreme powers, and that the government of the United States is their creature and agent. All those theorists who deny the original and essential unity and nationality of this people, declare that the separate states are or were the original nations. As a consequence it is either expressly maintained, or tacitly assumed, that there is no United States apart from the limited government created by the Constitution; in a word, that the United States, and the government thereof, which we recognize as distinct, are one and the same existence. In this short sentence are summed up the differences between the advocates of nationality, and those of state sovereignty. If we fail to apprehend the truth of the doctrine which I have stated, we shall fail to obtain any adequate conception of the imperial character of the people as an organic political society.

§ 88. Nor is the thought peculiar to our own social condition; it is a dogma which lies at the basis of all political science. The French nation has continued one and the same, while its government has taken the successive forms of Monarchy, Republic, Empire, Monarchy, Republic, and Empire, again. These several forms were, for the time being, the recognized organs and channels for the utterance and execution of the organic will of the people, in whom alone, as the final source, reside all the attributes and functions of legislation.

The English people remained one nation through the whole gradual but grand progress of constitutional change and development, from the time of the earliest Norman kings down to the temporary overthrow of the monarchy under Cromwell, to its unqualified restoration in the persons of the second Charles and the second James, to its subsequent limitation on the accession of William of Orange, and to its present existence as a splendid but empty pageant.