[284] August 18. Elliot, Vol. V. p. 439.

[285] August 29. Elliot, V. 492-497.

[286] Ibid. 492, 493.

[287] Ibid. 493.

[288] See the vote on a proposition moved by Mr. Carroll for a recommitment for the purpose of a.s.serting in the Const.i.tution the right of the United States to the lands ceded by Great Britain in the treaty of peace. New Jersey, Delaware, and Maryland alone voted for the recommitment. Elliot, V. 493, 494.

[289] Elliot, V. 495.

[290] Ibid. 496. New Jersey, Delaware, and Maryland, _ay_.

[291] When the Const.i.tution was finally revised, the word "hereafter"

was left out of the first clause of the third section of article fourth, apparently because the phraseology of the clause was sufficient, without it, to save the case of Vermont, which was regarded as not being within the "_jurisdiction_," although it was within the a.s.serted _limits_, of the State of New York.

[292] Elliot, V. 496, 497.

[293] The cession by South Carolina of all its "right, t.i.tle, interest, jurisdiction, and claim" to the "territory or tract of country" lying, within certain northern and southern limits, between the western boundary of that State and the river Mississippi, was in fact made and accepted in Congress, August 9-10, 1787, twenty days before the territorial clause was finally settled in the Convention, which took place August 30. (Journals of the Old Congress, XII.

129-139. Madison, Elliot, V. 494-497.) On the 20th of October of the same year, the Congress pa.s.sed a resolution urging the States of North Carolina and Georgia to cede their Western claims. This request was not complied with until after the Const.i.tution had gone into operation. The cession of North Carolina was made February 25, 1790; that of Georgia, April 24, 1802.

[294] It is not my purpose to enter into the argument on this question. I have recently had occasion professionally to maintain that the territorial clause is applicable to all territorial cessions made to the United States, whether by States of the Union or by foreign States, and that it clothes the government with a full legislative power over such territories and their inhabitants, which is subject only to the particular restrictions enumerated in the Const.i.tution.

Perhaps it is needless for me to add that I entertain this opinion.

But it is rejected by others, and, in the present state of judicial interpretation of this part of the Const.i.tution, by the supreme tribunal, it is not easy to determine what will finally become the settled construction.

[295] Const.i.tution, Art. I. -- 9, cl. 2.

[296] See Elliot, V. 484. The three States were North Carolina, South Carolina, and Georgia.

[297] Elliot, V. 462, 463.

[298] Elliot, V. 488.

[299] Ibid. 467. Const.i.tution, Art. I. -- 9, cl. 8.

[300] Articles XII., XIII. of the first draft, Elliot, V. 381.

[301] Elliot, V. 484, 485.

[302] Elliot, V. 484, 485.

[303] The Ordinance, which was pa.s.sed July 13, was published at length in "The Pennsylvania Herald," a newspaper printed at Philadelphia, on the 25th of July (1787). Mr. King's motion was made August 28, and is described by Mr. Madison as a motion "to add, in the words used in the Ordinance of Congress establishing new States, a prohibition on the States to interfere in private contracts." Elliot, V. 485.

[304] See the clause of the Ordinance, cited _ante_, Vol. I. p. 452, note 2.

[305] Elliot, V. 485, 488, 545, 546.

[306] Elliot, V. 479, 484, 486, 502, 538, 539, 540, 545, 548.

[307] By a vote of six States against four. Elliot, V. 548.

[308] Elliot, V. 548.

CHAPTER XII.

REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--SUPREMACY OF THE NATIONAL GOVERNMENT.--DEFINITION AND PUNISHMENT OF TREASON.

Among the resolutions sent to the committee, there were four which had reference to the supremacy of the government of the United States.

They declared that it ought to consist of a supreme legislative, executive, and judiciary;--that its laws and treaties should be the supreme law of the several States, so far as they related to the States or their citizens and inhabitants, and that the judiciaries of the States should be bound by them, even against their own laws;--that the officers of the States, as well as of the United States, should be bound by oath to support the Articles of Union;--and that the question of their adoption should be submitted to a.s.semblies of representatives to be expressly chosen by the people of each State under the recommendation of its legislature.[309]

In order to give effect to these precise and stringent directions, the committee of detail introduced into their draft of a const.i.tution a preamble; two articles a.s.serting and providing for the supremacy of the national government; a provision for the oath of officers; and a declaration of the mode in which the instrument was intended to be ratified.

The preamble of the Const.i.tution, as originally reported by this committee, differed materially from that subsequently framed and adopted. It spoke in the name of the people of the States of New Hampshire, Ma.s.sachusetts, &c., who were said "to ordain, declare, and establish this Const.i.tution for the government of ourselves and our posterity"; and it stated no special motives for its establishment. In this form it was unanimously adopted on the 7th of August. But when, at a subsequent period, the instrument was sent to another committee, whose duty it was to revise its style and arrangement, this phraseology was changed, and the preamble was made to speak in the name of the people of the United States, and to declare the purposes for which _they_ ordained and established the Const.i.tution.[310] The language thus employed in the preamble has justly been considered as having an important connection with the provisions made for the ratification of the instrument to which it was prefixed.

The articles specially designed to a.s.sert and carry out the supremacy of the national government, as they came from the committee, embodied the resolutions on the same subject which had pa.s.sed the Convention.

The only material addition consisted in the qualification, that the legislative acts of the United States, which were to be the supreme law, were such as should be made in pursuance of the Const.i.tution.

Subsequently, the article was so amended as to make the Const.i.tution, the laws pa.s.sed in pursuance of it, and the treaties of the United States, the supreme law of the land, binding upon all judicial officers.[311]

It is a remarkable circ.u.mstance, that this provision was originally proposed by a very earnest advocate of the rights of the States,--Luther Martin. His design, however, was to supply a subst.i.tute for a power over State legislation, which had been embraced in the Virginia plan, and which was to be exercised through a negative by the national legislature upon all laws of the States contravening in their opinion the Articles of Union, or the treaties subsisting under the authority of the Union.[312] The purpose of the subst.i.tute was to change a legislative into a judicial power, by transferring from the national legislature to the judiciary the right of determining whether a State law, supposed to be in conflict with the Const.i.tution, laws, or treaties of the Union, should be inoperative or valid. By extending the obligation to regard the requirements of the national Const.i.tution and laws to the judges of the State tribunals, their supremacy in all the judicatures of the country was secured.

This obligation was enforced by the oath or affirmation to support the Const.i.tution of the United States;[313] and, as we shall see hereafter, lest this security should fail, the final determination of questions of this kind was drawn to the national judiciary, even when they might have originated in a State tribunal.[314]

Closely connected in purpose with these careful provisions was the mode in which the Const.i.tution was to be ratified. The committee of detail had made this the subject of certain articles in the Const.i.tution itself.[315] But the committee of revision afterwards presented certain resolutions in the place of two of those articles, which were adopted by the Convention after the Const.i.tution had been signed; leaving in the instrument itself nothing but the article which determined the number of States whose adoption should be sufficient for establishing it.[316] These resolutions pursued substantially the mode previously agreed upon, of a transmission of the instrument to Congress, a recommendation by the State legislatures to the people to inst.i.tute representative a.s.semblies to consider and decide on its adoption, and a notice of their action to Congress by each State a.s.sembly so adopting it. The purpose of this form of proceeding, so far as it was connected with the primary authority by which the Const.i.tution was to be enacted, has been already explained.[317]

What then were the meaning and scope of that supremacy which the framers of the Const.i.tution designed to give to the acts of the government which they constructed?

In seeking an answer to this question, it is necessary to recur, as we have constantly been obliged to do, to the nature of the government which the Const.i.tution was made to supersede. In that system, the experiment had been tried of a union of States,--each possessed of a complete government of its own,--which was intended to combine their several energies for the common defence and the promotion of the general welfare. But this combined will of distinct communities, expressed through the action of a common agent, was wholly unable to overcome the adverse will of any of them expressed by another and separate agent, although the objects of the powers bestowed on the confederacy were carefully stated and sufficiently defined in a public compact. Thus, for example, the treaty-making power was expressly vested in the United States in Congress a.s.sembled; but when a treaty had been made, it depended entirely upon the separate pleasure of each State whether it should be executed. If the State governments did not see fit to enforce its provisions upon their own citizens, or thought proper to act against them, there was no remedy, both because the Congress could not legislate to control individuals, and because there was no department clothed with authority to compel individuals to conform their conduct to the requirements of the treaty, and to disregard the opposing will of the State.

This defect was now to be supplied, by giving to the national authority, not only theoretically but practically, a supremacy over the authority of each State. But this was not to be done by annihilating the State governments. The government of every State was to be preserved; and so far as its original powers were not to be transferred to the general government, its authority over its own citizens and within its own territory must, from the nature of political sovereignty, be supreme. There were, therefore, to be two supreme powers in the same country, operating upon the same individuals, and both possessed of the general attributes of sovereignty. In what way, and in what sense, could one of them be made paramount over the other?

It is manifest that there cannot be two supreme powers in the same community, if both are to operate upon the same objects. But there is nothing in the nature of political sovereignty to prevent its powers from being distributed among different agents for different purposes.

This is constantly seen under the same government, when its legislative, executive, and judicial powers are exercised through different officers; and in truth, when we come to the law-giving power alone, as soon as we separate its objects into different cla.s.ses, it is obvious that there may be several enacting authorities, and yet each may be supreme over the particular subject committed to it by the fundamental arrangements of society. Supreme laws, emanating from separate authorities, may and do act on different objects without clashing, or they may act on different parts of the same object with perfect harmony. They are inconsistent when they are aimed at each other, or at the same indivisible object.[318] When this takes place, one or the other must yield; or, in other terms, one of them ceases to be supreme on the particular occasion. It was the purpose of the framers of the Const.i.tution of the United States to provide a paramount rule, that would determine the occasions on which the authority of a State should cease to be supreme, leaving that of the United States un.o.bstructed. Certain conditions were made necessary to the operation of this rule. The State law must conflict with some provision of the Const.i.tution of the United States, or with a law of the United States enacted in pursuance of the const.i.tutional authority of Congress, or with a treaty duly made by the authority of the Union.

The operation of this rule const.i.tutes the supremacy of the national government. It was supposed that, by a careful enumeration of the objects to which the national authority was to extend, there would be no uncertainty as to the occasions on which the rule was to apply; and as all other objects were to remain exclusively subject to the authority of the States within their respective territorial limits, the operation of the rule was carefully limited to those occasions.

The highly complex character of a system in which the duties and rights of the citizen are thus governed by distinct sovereignties, would seem to render the administration of the central power--surrounded as it is by jealous and vigilant local governments--an exceedingly difficult and delicate task. Its situation is without an exact parallel in any other country in the world. But it possesses the means which no government of a purely federal character has ever enjoyed, of an exact determination by itself of its own powers; because every conflict between its authority and the authority of a State may be made a judicial question, and as such is to be solved by the judicial department of the nation.

This peculiar device has enabled the government of the United States to act successfully and safely. Without it, each State must have been left to determine for itself the boundaries between its own powers and those of the Union; and thus there might have been as many different determinations on the same question as the number of the States. At the same time, this very diversity of interpretation would have deprived the general government of all power to enforce, or even to have, an interpretation of its own. Such a confused and chaotic condition had marked the entire history of the Confederation. It was terminated with the existence of that political system, by the establishment of the rule which provides for the supremacy of the Const.i.tution of the United States, and by making one final arbiter of all questions arising under it.

By means of this skilful arrangement, a government, in which the singular condition is found of separate duties prescribed to the citizen by two distinct sovereignties, has operated with success. That success is to be measured not wholly, or chiefly, by the diversities of opinion on const.i.tutional questions that may from time to time prevail; nor by the means, aside from the Const.i.tution, that may sometimes have been thought of for counteracting its declared interpretation; but by the practical efficiency with which the powers of the Union have operated, and the general readiness to acquiesce in the limitations given to those powers by the department in which their construction is vested. This general acquiescence has steadily increased, from the period when the government was founded until the present day; and it has now come to be well understood, that there is no alternative to take the place of a ready submission to the national will, as expressed by or under the Const.i.tution interpreted by the proper national organ, excepting a resort to methods that lie wholly without the Const.i.tution, and that would completely subvert the principles on which it was founded. For while it is true that the people of each State const.i.tute the sovereign power by which the rights and duties of its inhabitants not involved in the Const.i.tution of the United States are to be exclusively governed, it is equally true that they do not const.i.tute the whole of the sovereign power which governs those relations of its inhabitants that are committed to the national legislature. The framers of the Const.i.tution resorted to an enactment of that instrument by the people of the United States, and employed language which speaks in their name, for the express purpose, among other things, of bringing into action a national authority, on certain subjects. The organs of the general government, therefore, are not the agents of the separate will of the people of each State, for certain specified purposes, as its State government is the agent of their separate will for all other purposes; but they are the agents of the will of a collective people, of which the inhabitants of a State are only a part. That the will of the whole should not be defeated by the will of a part, was the purpose of the supremacy a.s.signed to the Const.i.tution of the United States; and that the rights and liberties of each part, not subject to the will of the whole, should not be invaded, was the purpose of the careful enumeration of the objects to which that supremacy was to extend.

In this supremacy of the national government within its proper sphere, and in the means which were devised for giving it practical efficiency, we are to look for the chief cause that has given to our system a capacity of great territorial extension. It is a system in which a few relations of the inhabitants of distinct States are confided to the care of a central authority; while, for the purpose of securing the uniform operation of certain principles of justice and equality throughout the land, particular restraints are imposed on the power of the States. With these exceptions, the several States remain free to pursue such systems of legislation as in their own judgment will best promote the interest and welfare of their inhabitants. Such a division of the political powers of society admits of the union of far greater numbers of people and communities, than could be provided for by a single representative government, or by any other system than a vigorous despotism. Many of the wisest of the statesmen of that period, as we now know, entertained serious doubts whether the country embraced by the thirteen original States would not be too large for the successful operation of a republican government, having even so few objects committed to it as were proposed to be given to the Const.i.tution of the United States. If those objects had been made to embrace all the relations of social life, it is extremely probable that the original limits of the Union would have far exceeded the capacities of a republican and representative government, even if the first difficulties arising from the differences of manners, inst.i.tutions, and local laws could have been overcome.

But these very differences may be, and in fact have been, made a means of vast territorial expansion, by the aid of a principle which has been placed at the foundation of the American Union. Let a number of communities be united under a system which embraces the national relations of their inhabitants, and commits a limited number of the objects of legislation to the central organs of a national will, leaving their local and domestic concerns to separate and local authority, and the growth of such a nation may be limited only by its position on the surface of the earth. The ordinary obstacles arising from distance, and the physical features of the country, may be at once overcome for a large part of the purposes of government, by this division of its authority. The wants and interests of civilized life, modified into almost endless varieties, by climate, by geographical position, by national descent, by occupation, by hereditary customs, and by the accidental relations of different races, may in such a state of things be governed by legislation capable of exact adaptation to the facts with which it has to deal. In this way, separate States under the republican form may be multiplied indefinitely.

Now what is required in order to make such a multiplication of distinct States at the same time a national growth, is the operation of some principle that will preserve their national relations to the control of a central authority. This is effected by the supremacy of the Const.i.tution of the United States, against which no separate State power can be exerted. This supremacy secures the republican form of government, the same general principles and maxims of justice, and the same limitations between State and national authority, throughout all the particular communities; while, at the same time, it regulates by the same system of legislation, applied throughout the whole, the rights and duties of individuals that are committed to the national authority. It was for the want of this supremacy and of the means of enforcing it, that the Confederation, and all the other federal systems of free government known in history, had failed to create a powerful and effective nationality; and it is precisely this, which has enabled the Const.i.tution of the United States to do for the nation what all other systems of free government had failed to accomplish.

In this connection, it seems proper to state the origin and purpose of that definition of treason which is found in the Const.i.tution, and which was placed there in order, on the one hand, to defend the supremacy of the national government, and on the other, to guard the liberty of the citizen against the mischiefs of constructive definitions of that crime. No instructions had been given to the committee of detail on this subject. They, however, deemed it necessary to make some provision that would ascertain what should const.i.tute treason against the United States. They resorted to the great English statute of the 25th Edward III.; and from it they selected two of the offences there defined as treason, which were alone applicable to the nature of the sovereignty of the United States. The statute, among a variety of other offences, denominates as treason the levying of war against the king in his realm, and the adhering to the king's enemies in his realm, giving them aid and comfort in the realm, or elsewhere.[319] The levying of war against the government, and the adhering to the public enemy, giving him aid and comfort, were crimes to which the government of the United States would be as likely to be exposed as any other sovereignty; and these offences would tend directly to subvert the government itself. But to compa.s.s the death of the chief magistrate, to counterfeit the great seal or the coin, or to kill a judge when in the exercise of his office, however necessary to be regarded as treason in England, were crimes which would have no necessary tendency to subvert the government of the United States, and which could therefore be left out of the definition of treason, to be punished according to the separate nature and effects of each of them. The committee accordingly provided that "treason against the United States shall consist only in levying war against the United States, or any of them; and in adhering to the enemies of the United States, or any of them."[320]