W

ITHIN the last twenty years, and with increased energy during the last five years, the question of State Rights, as it was presented to the country during General Jackson's administration, has been revived, and opinions have been expressed through printed publications by Henry Cabot Lodge, Gov. D. H. Chamberlain, Prof. Goldwin Smith and Charles Francis Adams in his two papers published recently under the respective titles: "The Constitutional Ethics of Secession," and "War is Hell," and not unlikely by many other persons whose writings have not fallen under my eye.

Mr. Lodge in his Life of Webster expressed the opinion that Mr. Webster erred in his argument in his reply to Hayne. That opinion as expressed by Mr. Lodge was not. accepted by the mass of the people in the North when the great debate took place, nor has there been any period since 1830 when the public opinion of the North did not fully sustain Mr. Webster in that debate. For the time being the controversy was suspended, and by many it was thought that it had ended by the

establishment of the doctrine that the nation was supreme and that the asserted right of a state to secede upon its own motion had been abandoned. It was true, however, that in the South the doctrine of the right of a state to secede was taught in all the schools, in all the families, and in all the communities,

whether the view of Mr. Calhoun or the more moderate opinion of such men as Alexander H. Stephens was accepted as the controlling force of society. In the debate that has risen during the last twenty years, suggestions have been made. or opinions have been expressed, within the limits of the extreme views of the North and the South, which may be summarized thus, viz.: that the convention of 1787 did not as a body entertain any view as to the legal character of the instrument which they had created and submitted to the country, or that, having an opinion, they thought it wise to conceal it. Passing from the convention to the instrument itself, there have been advocates of several views of which I mention the following: (1) that there was a reservation of State Rights which justified the South in its ordinances of secession of 1860 and 1861; (2) that the government. created and organized was a consolidated union and that each of the states that had assented thereto was bound to continue in it without regard to its own opinion as to the policy which the government as a whole might enter upon and enforce; (3) that from the instrument itself it was impossible to deduce a legal conclusion, and that those who believed it to be a consolidated union, and those who believe it to be a compact from which a state might retire at its pleasures, were

equally in the right. As a final expression of the latter opinion, I quote from Mr. Charles Francis Adams' work entitled "Constitutional Ethics of Secession," at page 16, where he makes the following state

ment:

"Mr. Lodge and Professor Smith may be wrong, but whether they were wrong or right does not affect the proposition that from 1788 to 1861 in case of direct and an insoluble issue between sovereign states and sovereign nations every man was not only free to decide, but had to decide the question of ultimate allegiance for himself, and whichever way he decided he was right. The Constitution gave him two masters, both he could not serve, and the average man decided which to serve in the light of sentiment, tradition and environment. Of this I feel as historically confident as I can feel of any fact not matter of absolute record or susceptible of demonstration."

In the June number of the NEW ENGLAND MAGAZINE may be found an article of very moderate length, in which I have expressed an opinion, with something of authority and something of argument added thereto, which involves a denial of the historical and legal truthfulness of each and all the propositions to which I have referred. The view presented in that article had been forecast by me in a work that I published in 1896 entitled "The Constitution of the United States at the End of the First Century" (page 167).

It is the object of this paper to set forth at greater length and with a fresh array of authorities the view expressed in my work on the Constitution and restated in the article

published in June last in the New England Magazine. The views expressed in this paper should cluster around and give support to some one or all of three propositions, viz.:

1. That the members of the con

vention of 1787 were of opinion when they assembled that a government could be framed upon the basis of a compact such as existed in the Articles of Confederation of 1778.

2. That the members of the convention remained of that opinion or at least indulged the hope that a stable or efficient government might be created on the foundations laid by the confederacy until as late as the thirtieth day of May, 1787, when certain declarations were made as appears by the Madison papers (Mobile Edition, 2, pa. 747) which indicate a departure from the theories which had guided the convention previous to that date.

3. That on the 6th day of August the committee on detail by the hand of Mr. Rutledge made a report in which the preamble to the Constitution was so changed as to establish the fact that the states as sovereignties had disappeared as elements of the national government. Previous to that date, every proposition for the government, especially the propositions submitted by Mr. Randolph and Mr. Pinckney, enumerated in the preamble the thirteen states as the elemental and independent forces in the govern

ment to be established under the Constitution as then proposed. The Confederacy of 1778 contained declarations which indicated very distinctly that the states were sovereignties, although members of the Confederacy.

The peculiarities by which the Confederacy of 1778 and the Constitution of 1787 may be distinguished are these:

First, in the Articles of Confederation states are enumerated as the elements of power.

Article 2 of the Confederacy is in these words:

"Each state retains its sovereignty, freedom and independence and every power, jurisdiction and right which is not by this confederation expressly delegated to the United States in Congress assembled."

Article 3 is in these words:

"The said states hereby severally enter into a firm league of friendship with each other for their common defense, the security of their liberties and their mutual and general welfare, binding themselves to assist each other against all forces offered to or attacks made upon them or any of them on account of religion, sovereignty, trade or any other pretense whatever."

Each state was bound to maintain its own delegates in the meeting of the states and whenever they might act as members of committees of the states; each state was

have one vote; states were prevented from making treaties with each other; they could not send ambassadors to foreign states or countries without the consent of the United States; nor could a state engage in war without the consent of the United States in Congress assembled. None of these declarations, or declarations corresponding in character, are to be found in the Constitution of the United States. A state, as a state, has no authority under the Constitution to do any act which can in any form relate to or affect the public welfare of the country or even of the state itself in its relation to to foreign countries. The change in the preamble and the omission by the convention of 1787 to preserve in the Constitution any of the distinguishing features of the Confederacy, by which the states might exercise authority in affairs affecting the fortunes of the entire body confederated, should upon grounds of reason be accepted as conclusive

evidence that the Convention of 1787 in its final action had ⚫abandoned the idea that a government resting upon the principles asserted in the Confederacy could be an efficient government for all the purposes of peace and war. But the Convention did not leave the matter in doubt. The Constitution when submitted to the people contained as an appendix a letter in which the views of the Convention are set forth, and to which the same assent was given by the signature of members as was given to the text of the Constitution itself. That letter is of such importance, and its existence has been so neglected by writers and commentators on the Constitution of the United States, that I think its insertion is fully justified at the present time, when the moral aspect of the contest of 1861 is under consideration in this country, and concerning which the attention of leading minds in other countries appears to be directed. The Letter is printed in the Madison papers, Volume 3, Mobile Edition of 1842, page 1560, and is as follows:

"We have now the honor to submit to the

consideration of the United States, in Con

gress assembled, that Constitution which has appeared to us the most advisable.

"The friends of our country have long seen and desired that the power of making war, peace and treaties; that of levying money, and regulating commerce, and the correspondent executive and judicial authorities, should be fully and effectually vested in the general government of the Union. But the impropriety of delegating such extensive trust to one body of men is evident. Thence results the necessity of a different organization. It is obviously impracticable, in the federal government of these States, to secure all rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society must give up a share of liberty, to preserve the rest.

The magnitude of the sacrifice must depend as well on situation and circumstances, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved. And on the present occasion this difficulty was increased by a difference among the several States, as to their situation, extent, habits, and particular interests.

"In all our deliberation on this subject, we kept steadily in our view that which appeared to us the greatest interest of

every true American, the consolidation 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 in 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.

"That it will meet the full and entire approbation of every State is not, perhaps, to be expected. But each will doubtless consider, that had her interest alone been consulted, the consequences might have been particularly disagreeable and injurious to others. That it is liable to as few exceptions as could reasonably have been expected, we hope and believe; that it may promote the lasting welfare of that country so dear to us all; and secure her freedom and happiness, is our most ardent wish."

Of this letter as a whole it may be said that it is devoted largely to two aspects of the situation; first, that the powers necessary to a general government are very important powers, and that the exercise of such powers cannot be vested in one body of men. Thus the plan of legislation necessarily incident to a compact between states was repudiated and disavowed as danger

ous with reference to war, peace and treaties, levying money or regulating commerce. These views are set forth as conclusive views which compelled the Convention to establish a government containing two

branches,-a Senate and a House of Representatives, This arrangement of necessity annulled the sovereignty of states in regard to the great powers of government, powers essential to a government adequate to all the exigencies of peace and

war.

(2) Upon this declaration the Convention sets forth the duty of making sacrifices and the magnitude of such sacrifices is made to depend on situation and circumstances. They admit the difficulty of drawing a precise line between those rights which must be surrendered and those which may be reserved. Their important declaration is in these words:

"In all our deliberation on this subject, we kept steadily in our view that which appeared to us the greatest interest of every true American, the consolidation of our union, in which is involved our prosperity, felicity, safety, perhaps our national existence."

It cannot be said of the letter that there was any attempt on the part of the Convention to conceal from the people the truth in regard to the character of the government which they were setting up. They declared it was a consolidated government. They had omitted from the Constitution all the distinguishing features of the Confederacy. They declared that the Confederacy had failed in substance and that a

confederated government was inadequate for the exigencies of peace and war. It follows from all this that

from a legal point of view the people

and states that ratified the Constitution ratified it upon the understanding that the Confederacy had disappeared and that a consolidated government was then to be established.

The people and states of the Union thus became morally and legally bound to the Constitution upon the declaration which had been set forth in the letter of the Convention, if the Constitution itself was consistent with the declarations which the letter contained. The Constitution upon the single point whether it was a compact or a union or in other words a consolidated government was not left open to dispute or controversy. It was settled by the people themselves, who having before them the letter of the Convention in which the opinion and purpose of the Convention were distinctly set forth, did by their ratification of that document, ratify it upon the theory set forth in the letter as to the nature and character of the Constitution which the Convention had submitted to the people of the country. Thus every citizen of the country became legally and morally bound to support the Constitution upon the doctrine set forth in the letter, and especially as the Constitution. appears to be consistent with the doctrines set forth in the letter. Therefore, the question whether the Constitution is a compact or a consolidated government is not now, and subsequent to the ratification. of the Constitution never was, open for debate as to whether it was a compact or a consolidated government. It had been ratified as a consolidated government and every citizen was bound by that ratification. It follows that any attempt to treat the Constitution as a compact was a violation of the constitutional obligations to support the government of the country, which obligations then rested and must continue to rest upon every citizen.

The conduct of the South-which

for the purpose of this paper is to be tested in the case of General Lee is to be considered in two aspects. The inhabitants generally, and the leaders perhaps, were ignorant of the existence of the letter of the Convention or they may have treated its statements as of no value, or they may have misinterpreted them; and if so, they are entitled to whatever justification may be found in the presence and combined action of ignorance and honesty. They may not have considered the subject in all its relations, and they may have been honest in their view that the government was only a compact,―a production in some form of the Confederacy of 1778, but the right remains and the duty of citizenship continues, whatever theories may be maintained or acted upon and an error as to the nature and extent of one's rights does not justify his conduct when the legal aspect of his doings is under consideration.

By the terms of the Constitution, and by the letter of the Convention in harmony with those terms, the whole country was bound, and if by those provisions in the presence of the letter the government created was a consolidated government, those that contended that it was a compact, merely, were in error, and being in error, they are responsible for their misdoings. Hence, when the states of the south passed ordinances of secession and took up arms against the government of the United States, they were attempting to repudiate an agreement by which they were bound, which included the character of the Union or Government established in 1787 and which, by the terms of the agreement, could be dissolved only by force exercised against constitu