The plain answer is that the states were associating to make themselves "the united states," or the "union of states," as the constitution itself repeatedly characterizes the association formed; and it was politically and morally impossible that a general government, constituted and carried into effect by such parties, should be other than a federal government, or that their union should be other than a federation of equal sovereigns.

Until the new federal constitution was completely "established," as a living and operating form of government, in place of the old; that is to say, until nine states had ratified, and had acted severally in electing federal functionaries, and these had convened and organized themselves as the new federal government; the solemn treatystipulation, guaranty, and pledge of faith, of all the states to each, was in full force, in the following words: "EACH STATE RETAINS ITS SOVEREIGNTY." [See the first fed. const'n., Art. II.] With this supreme and majestic status and character, each and all acted. not sovereignty have existed in each state, through the act of establishing, and hence afterwards, to enforce, and, if need be, to amend? When did this sovereignty, and the voluntariness of the association cease? 1

Must

Gross Pictorial Deception. In all the publications of this great instrument, from the beginning to this day, the following words are placed at the close: "Done in convention by the unanimous consent of the states present, this 17th of September, 1787." Affixed to this are the names of the mere framers, and of the states they represent. A pictorial impression is thus made upon the popular mind, which the "Massachusetts school" deepen, by speciously and sophistically using the preamble, the supreme-law clause, and the Tenth Amendment. They say that the constitution teaches that "we, the people" of the nation, "do ordain and establish" [preamble]; that what the nation ordains is "the supreme law of the land" [Art. VI., § 2]; and that all powers, not delegated by the nation, in this constitution, are, by the said nation, "reserved to the states respectively, or to the

1 While showing the states to be the absolute, the exclusive, and the only possible parties to the constitution, it is well to note the theory of the remarkable work called "The Lost Principle," by Barbarossa, published at Richmond, in 1860. It sets forth that the warm controversy on representation, between the large and the small states, and between the North and the South, that rose in the convention of 1787, resulted in establishing an equilibrium between the sections by compact. Such compact -or more properly speaking, adjustment or understanding- if such there was, does not come under my aim, which is to set forth an actual written compact, constituting a government (and ipso facto a union of states), and delegating specific powers. The terms of that instrument, its powers and parties, are most palpable; and nothing is said in it of sections or their agreements. However, the subject will be more extensively noticed in Part III., while the author's theory will be found in the Appendix, set forth in his own words.

people" [Amendment X.]. This is the pith of the consolidation doctrine. And it is well to add here, that Judge Story, as if to aid in misleading, asserts the aforesaid authenticating words to be a part of the constitution. [See his Com., § 1856.] This will be properly noticed hereafter. [See p. 172, infra.]

The result of the above teaching is, a popular belief that a system was devised, and put in force, in 1787, by the said framers, who represented and acted for the nation; while the states were present, consenting to be bound, and to have and enjoy only such rights and powers as should be "reserved to" them and the people; and that the subsequent ratifications by the states, were merely the taking of the affirming vote of the nation by sections, or groups of voters." [See Jameson's Constitutional Convention, 59 et seq.]

66

Exposure of the Fallacy. These, and other deceptions, produce in the popular mind a vague and false idea of our system, and divert attention from the real signers of the "executed deed," the real constituents of the constitution "the people" as commonwealths. It is forgotten that these "moral persons"- the bodies-politic, named in the constitution gave to that instrument all its life and validity, each, in its own time, place and convention, discussing the instrument, and ratifying it. It is forgotten that they delegated in it all the powers it contains; and ever afterwards administered it, through their own citizens and subjects, whom they elected or appointed for the purpose. It is forgotten, too, that it was only the draught, or unexecuted deed, that was "done in convention," while the living thing, i. e. the constitution of union and government, was not "done" in the sense of being executed, i. e. ordained as law, and empowered to operate— till the commonwealths respectively acted on it, and gave it the only existence and legal force ever contemplated — each acting with her own absolute and exclusive will, and they taking two or three years to deliberate and determine whether to adopt or reject the first adopting in December, 1787, the ninth and complemental one in June, 1788, and the thirteenth and last in May, 1790. These states, as Hamilton declared, nem. dis., were “the parties to the compact" [Fed. 85], and the "essential component parts of the union" [II. Ell. Deb. 304]. And the said states were necessarily the only "parties," or "parts," possible, for they comprised - nay, they were themselves all the people of the country, and had under their sovereignty and jurisdiction, all the territory.

The above deceptive presentation of the "executed" "deed," is like exhibiting a contract signed by the lawyers who framed it, instead of the parties to be bound. Or, it is like a conveyance, with the names of the conveyancers, instead of the vendor and vendee, affixed.

In a republic, these popular impressions are very important, as "the people," who of right govern in everything, are, unfortunately, gregarious, and addicted to following leaders and teachers. They seldom look beneath the surface, and, as appearances generally influence them, things virtually are, or rather become, what, to the masses, they seem to be. For example, in the case before us, under a constitution, which most clearly provides for a federation of states, governing themselves through agencies, we have an empire of provinces, held together and ruled by a central sovereignty!

The "More Perfect Union" of 1788. We have now a complete and accurate conception of the "more perfect union" of states formed in 1788, to supersede the one of 1778, which had proved unsatisfactory. Though the above-quoted phrase shows that the constituents were the same in both unions, the great perverters audaciously say that the change nationalized the states, by consolidating them into one state or nation, instead of federalizing them. Mr. Webster asserted that “a change was made from a confederacy of states to a different system." [Speech of 1833.] So said Judge Story [I. Com. § 357]; and such was the statement of the federal supreme court in "Gibbons vs. Ogden." [9 Wheaton, 1.]

All history shows the falsity of the contention; the fathers declare it, as Chapter VII., Part I. shows; and we shall see in the next chapter that the constitution itself shows it to be utterly baseless.

The Identity of Character of the Two Unions, and the true conception of our present system can be at once ineffaceably stamped on the popular mind, and an end put to controversy, as follows:

1. Let the commonwealths be represented as so many symbolical figures. On the opposite page are 13 such, with their names. Each represents a republic or self-governing people "free, sovereign and independent." Added to each is a figure representing its tripartite government the legislature, the executive, and the judiciary.

2. Let a single figure be placed below to represent congress or the federal legislature-i. e. the first federal government.

3. Let a line be drawn from the legislature of each state to the congress, to indicate the imparting of existence and authority to the first federal constitution, that of 1778. It was adopted by the states through their legislatures.

4. Let there be added to the congress, to complete the tripartite form of government, two figures, one the executive, and the other the judiciary thus representing the plan devised by the convention of 1787.

5. Then, a line drawn from each body-politic itself, instead of its

legislature, indicates the imparting of life and authority to the second federal constitution that of 1788.

Both Systems Federal Unions. This symbolical demonstration shows precisely our present system not only, but the difference in form and character between it and the first. Both systems were associations of commonwealths. Both unions were voluntary, and no involuntariness could supervene, for each state was a republic or self-governing people, with no limit of right; and each will that acted, survived, and presumably remained free. And in all the long track and record of progress, there is no shadow of evidence that the said bodies-politic were consolidated, or their wills subordinated. That is to say, they were not provincialized again!

They are now the same political entities that gained independence and statehood. Each has now the same individual name, geography, people, organism, mind and will, and the original and underived right and power that appertained, under God, respectively to the organized societies of people in 1776. And out of them no power has ever gone except delegations to their own members, citizens, and subjects, who, acting exclusively with such powers, can only be "substitutes and agents," as all the fathers called them.

The Separate Wills of States made both Systems. - It is obvious, then, that the system founded in 1788, was as much of a federation as the first, for the people of each state gave their consent and ordaining power to this as to that, in their character as a commonwealth, or sovereign political body; and more unmistakably in this case, as here it was the commonwealth itself that acted, while there it was its agent, the legislature; here the sovereignty directly delegated power, there the delegation was done by delegates. Masters and principals made up their minds and exerted their wills in the latter case, while servants and agents acted with their discretion in the former. States, in both instances, bound themselves in faith — in the former case affirming, or acquiescing in, the acts of their agents, but, in the latter, acting themselves. It is plain, then, that the union of 1788 was a voluntary association of pre-existent sovereigns a federation of distinct and absolutely independent states. Indeed, these wills could not, by any political or moral possibility, come together, in peace and without force, for self-preservation and self-government, without a confederacy being the result. Voluntariness was essential, and force could only end it!

-

The Later Federation the "More Perfect." - If, therefore, I were to instance a complete federation, I would name the one of 1788, instead of the other; for, as to this one, the forms, acts and solemnities were of a higher character; the authority from the associating sove

146

reignties was more direct and pronounced; the architects were abler, more experienced, and better instructed in public law and political philosophy; the action was much more deliberate and careful; and the structure was nearer perfection, more practical, and much better adapted to securing the ends in view, viz., "the common defence," "the general welfare," and "the blessings of liberty" of the selfjoined states. [See Fed. Const. preamble.]

But let us conclude these chapters on Federalization with one asking the constitution itself what polity it provides for, keeping in mind not only the naming of the states therçin, and their separate ratifications to establish it, but the all-important facts:

1. That the congress of the states declared, on the 13th of Septemhas been ratified in the manner ber, 1788, that "the constitution .. therein declared to be sufficient for the establishment of the same; and such ratifications, duly authenticated, have been received by congress, and are filed in the office of the secretary;'

2. That the said instrument was then complete as the compact, the law, and the constitution of government of the said ratifying and establishing states; and

3. That, thereafter, to operate the machine that had been so deliberately planned, completed, and pronounced good, "the states began to to use Washington's phrase [p. 230 act under the new compact". infra]-by electing their respective quotas of the set of operatives, so to speak, who were to work it.

The ship of state, which was built and made ready for sea in 1787-88, did not ship her crew and set sail on her first voyage till March, 1789!