State sovereignty : rebellion against the United States by the people of a state is its political suicide

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STATE SOVEREIGNTY. \

REBELLION AGAINST THE UNITED STATES BY
THE PEOPLE OF A STATE

IS ITS POLITICAL SUICIDE.

BY

JAMES A. HAMILTON.

PUBLISHED BY THE EMANCIPATION LEAGUE IN THE CITY OF NEW YORK.

NEW YORK:
BAKER <fc GODWIN, PRINTERS,

PRINTING-HOUSE SQUARE, OPPOSITE CITY HALI,.

1862.

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STATE SOVEREIGNTY.

REBELLION AGAINST THE UNITED STATES BY
THE PEOPLE OF A STATE

IS ITS POLITICAL SUICIDE.

BY

JAMES A. HAMILTON.

PUBLISHED BY THE EMANCIPATION LEAGUE IN THE CITY OF NEW YORK.

NEW YORK:
BAKER & GODWIN, PRINTERS,

PRINTING-HOUSE SQUARE, OPPOSITE CITT HALL.

1862.

STATE SOVEREIGNTY.

EEBELLM AGAINST THE UNITED STATES BY THE PEOPLE OF A
STATE, IS ITS POLITICAL SUICIDE.

It is proposed to discuss these great propositions
with candor, and in a manner, it is hoped, which will
tend to impress upon the public mind such clear views
in relation thereto as that the arts of party politicians
and demagogues may never again, by exciting feelings
of State pride, sap the foundation of the people's loy-
alty to their Government of the United States.

In 1798, ambitious men, to promote a party triumph,
induced numbers, and ultimately a majority of the people,
to believe that the State Governments were in danger
of destruction from the encroachments of the central
Government. Then, and thus, was created " The States'
Rights Party."

This skillful effort of party strategy produced the
famous resolutions of 1798, passed by the Legislatures of
Virginia and Kentucky, proclaiming dogmas in relation
to the powers of the States which, without a very forced
construction, laid the foundation of Nullification by
South Carolina in 1832, and culminated in the "Slave
Barons' " Rebellion in 1860.

This is the teaching of history. It is referred to
now only as a warning voice, and to prepare politicians
and partisans, as well as the people, not to receive the
dogma of " State Sovereignty" as embracing a truth
worthy of all acceptance, and of so sacred a character
as to forbid questioning or examination.

It is due to the distinguished men who proposed the
resolutions of 1798, to say, they did not contemplate
the dire consequences of their work ; and that one of
them, during the period of nullification, took great pains
to prove that those resolutions did not countenance the
destructive and pestilent doctrine of secession.
" The evil that men do lives after them.11
The following great truths and maxims in regard to
government are stated because pertinent to this discus-
sion:

" The sovereignty and independence of the people began by a
Federal act."

" Sovereignty is the supreme, ultimate authority in a country."

" Supreme authority is sovereign."

" In this country, sovereignty is in the people."

"The fabric of the American Empire rests on the solid basis of
the consent of the people of America — the pure and original founda-
tion of all legitimate authority."

" In every government, there must be a supreme, absolute author-
ity lodged somewhere."

In our complicated system, " The General Government must not
only have a soul, but strong organs by which that soul is to operate."
" The soul is the people of the United States." The organs are found
in that Government they have " ordained and established for themselves
and their posterity.''''

Every government must establish " an undisputed organ of the
public will."

" All men are created equal. They are endowed by their Cre-
ator with certain inalienable rights ; among these are life, liberty
and the pursuit of happiness. To secure these rights governments"are
instituted among men, deriving their just powers from the consent of
the governed. Whenever any form of government becomes destruc-
tive of those ends, it is the right of the people to alter or abolish ity
and to institute a new government."

" The power of the majority and liberty are inseparable ; destroy
that, and this perishes."

" A government ought to contain in itself every power requisite

to the full accomplishment of the objects committed to its care, and
the complete execution of the trusts for which it is responsible, free
from every other control but a regard to the public good, and to the
sense of the people." — Federalist.

These are maxims to which every citizen of the
United States will give his unhesitating and unqualified
assent.

We proceed, in order clearly to understand the rela-
tions of the States to the United States Government,
and the powers of each, to give a brief history of the
rise and progress of the various governments to which
we have been subjected. This will be interesting and
instructive.

On the 5th September, 1774, the deputies from all
the colonies, except Georgia, assembled in a congress in
Philadelphia. The object was, to state their grievances,
as "subjects" and to appeal to the King and their
fellow-subjects of England for redress. On the 20th
October they adjourned to meet again on 10th May,
1775, "unless their grievances were redressed in the
mean time."

On the 19th April, 1775, the war of the Eevolution
was begun by the battle of Lexington. On the 10th
May following, the second Congress assembled at Phila-
delphia. This Congress, in July, sent " a most loyal
petition to the King, and a conciliatory address to the
people of Great Britain." They, at the same time, pre-
pared by vigorous measures for resistance. They voted
to raise an army of twenty thousand men ; appointed
Washington commander-in-chief; enacted articles of war ;
bills of credit representing six millions of dollars were
authorized to be issued ; a navy was commenced ; let-
ters of marque and reprisal were issued/

This Congress continued in permanent session, and

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on the 4th July, 1776, issued that immortal Declaration
which made " the people of the colonies sovereign and
independent," by which, as " one people," they assumed
among the powers of the earth the separate and equal
station to which the law of nature and of nature's God
entitle them. " And they solemnly declared that these
United Colonies are, and of right ought to be, free and
independent States. And that, as such, they had full
powers to levy war ; to contract alliances ; to establish
commerce ; and to do all other acts which independent
States may of right do."

It is to be remarked, that this act of the Congress
of 1776 was not only a Declaration of Independence,
but it established* a Provisional Government — a pure
despotism — which, in obedience to the last maxim, on
the 27th December appointed Washington Dictator,
and conferred upon the delegates in Congress assembled
full and absolute powers to levy war, and to do " all
other acts and things which independent States may of
right do." In short, it was made " the undisputed or-
gan of the national will."

This absolute Government continued from July,
1776, until March, 1781.

It will be remembered that " the Articles of Con-
federation " were duly prepared and ready for signature
on the 9th July, 1778, two years after the Declaration,
and that they were ratified by the signatures of the
delegates of the various States, from the 8th August,
1778, down to March 1st, 1781. This being a compact
between sovereign States (in the second article it is de-
clared that " each State retains its sovereignty, freedom
and independence "), it consequently did not bind any
one State until, all the States parties to it had ratified
it, which was not done by Maryland until 1781.

Thus it appears that the first, a Provisional Govern-
ment, one of absolute powers, was established on the
4th July, 1776, and continued until March 1st, 1781 —
a period of nearly five years ; and from that time until
the adoption of the Constitution of the United States,
in 1788, a period of seven years, we had a limited Gov-
ernment of confederated States, each sovereign and
independent, with constitutions of government formed
by the independent and sovereign people of those States ;
that in the formation of these State Governments, the
people of each State invested their Government with as
large a portion of their sovereignty as was necessary to
the end in view, and they retained the power to alter
or abolish their respective Governments according to
their discretion.

This historical statement of our several governments
brings us up to the period when measures were taken
to establish another and the actual government of the
United States.

On the 14th May, 1787, a convention of delegates
assembled at Philadelphia, appointed by their respective
State Governments, pursuant to a resolution of th$ Con-
gress of the Confederation, in these words : " Resolved,
That in the opinion of Congress it is expedient that, on
the second Monday of May next, a convention of dele-
gates, who shall have been appointed by the several
States, be held at Philadelphia, for the sole and express
purpose of revising the Articles of Confederation, and
reporting to Congress and the several Legislatures such
alterations and provisions therein as shall, when agreed
to in Congress and confirmed by the States, render the
Federal Constitution adequate to the exigencies of the
Government and its preservation."

We give the resolution in full, to show that the sole

8

and express purpose of Congress, and of the Legislatures
appointing delegates was, that the Government of the
Confederated States should be preserved and amended ;
and to that end we add that the instructions to the del-
egates, in most if not all cases, conformed to that purpose.

We do this to give the advocates of State rights all
its advantages, and to show that if such a Government
was not framed, if the confederated Government was not
preserved, it was not from misconstruction or accident,
but under the influence of a clear conviction that its in-
herent defect was incapable of being cured, and that it
must, therefore, be proposed to be abolished. We say
proposed, because the convention had no power to estab-
lish a Government, but only to recommend a scheme
for adoption.

We now come to the consideration of the great
questions —

First. How was the Constitution of the United
States formed ?

Second. Who formed it ?

Third. By whom was it adopted and ratified \

The convention was of delegates appointed and in-
structed by twelve of the thirteen sovereign and inde-
pendent States. (Rhode Island was not represented.)

The first great question to be decided by the dele-
gates was whether they woidd obey or disregard their
instructions. They decided to disobey, and proceeded
to form a new and very different Government from that
which had called the convention into being.

Two leading plans were submitted to the convention.
One, " The Virginia Plan" which proposed to form a
General Government, independent of the control of the
States. The other proposed to amend the" Articles of
Confederation" and thus to leave the General Govern-

9

ment dependent upon the State Governments, as it was
before.

The great and leading question was thus distinctly
presented for decision ; and after long, earnest, and anx-
ious discussion, the plan of a confederacy was discarded,
and the convention proceeded to devise the form of a
constitution of government, in the name of, and to which
the whole people of the United States were the parties.

" We, the people of the United States, in order to
form a more perfect union, establish justice, insure do-
mestic tranquillity, provide for the common defence,
promote the general welfare, and secure the blessings of
liberty to ourselves and our posterity, do ordain and
establish this Constitution for the United States of
America."

Language could not more distinctly mark the funda-
mental difference between these instruments. The first
was made, as clearly as language could do so, " a league "
— an agreement — a confederation between sovereign
States. It was formed by the Congress which was the
organ of those States. It was sanctioned by the Legis-
latures of the several States, and not by the people
thereof.

Whereas, the second was declared to be a constitu-
tion. It was " ordained and established by the people
of the United States, for themselves and their posterity."
It was, in despite of instruction and the resolution of
Congress, directed to be submitted to a convention of
delegates chosen in each State by the people thekeof."
All this was done, and this constitution of government
so formed was ordained and established by the people,
through their delegates in conventions held in the differ-
ent States.

It has been remarked that the sovereign and inde-

10

pendent people of the States formed their State Govern-
ments, making them sovereign and independent States,
as they certainly were, and in the Articles of Confeder-
ation they were so declared to be.

The Constitution for the United States prepared by
the convention of 1787, made "the States essential and
component parts of the Union,1' " necessary to the form
and spirit of the general system." In doing this, their
sovereignty and independence were merged, and made
subordinate to that system. The Constitution necessa-
rily and properly " left with the State Governments
those residuary authorities which were judged proper
for local purposes " under it. The civil and domestic
concerns of the people were to be governed by the laws
of the respective States.

It is undeniable that in all mixed systems there must
be a control somewhere. Either the general interest is
to control the particular interest, or the contrary. If the
former, then certainly the Government was so formed as
to render the power of control efficient to all intents and
purposes. If the latter, a striking absurdity follows.
Whatever constitutional provisions are made to the con-
trary, every government will at last be driven to the
necessity of subjecting the particular to the universal
interest. In obedience to this necessity, — in order that
the varying interests of a State and a General Govern-
ment might not clash, — it became the duty of wise men
so to frame a scheme of government for the whole peo-
ple as that there should not be two sovereignties moving
in the same sphere.

They consequently proposed to abolish the sover-
eignty and independence of the States, and at the same
time they deemed it " necessary that all of the every-
day rights of property, of social arrangements, of mar-

11

riage, of contracts, — every thing that makes np the life
of a social community, — should be under the control, not
of a remote or distant authority, but of one that is lim-
ited to, and derives its ideas and principles from, a local
community." — ( William M. Evarts?)

We have said the proposed constitution of govern-
ment contemplated the abolition of State sovereignty.

This position will be found to be sustained by a
critical examination of the sovereign powers attributed
to the General Government and denied to the State
Governments by the Constitution proposed for the
adoption of the people.

The people of the United States have formed a Gov-
ernment with " an undisputed organ of the 'national
will," which is known to the nations of the earth as
having all the attributes of a sovereign and independent
power. Thus the State Governments collectively were
once known ; and as such they formed treaties with for-
eign powers. Are they individually or collectively so
recognized at present ? They certainly are not. Why ?
Because when the Constitution of the United States
was established they descended from that superior con-
dition. This is the fact ; and such is the judgment of
mankind.

There cannot exist in the same government two
superiors, because " supreme authority is sovereignty,"
and " two powers cannot be supreme over each other."

Washington, in his letter addressed to Congress,
17th September, 1787, as President of the Convention,
says : " It is obviously impracticable, in the Federal
Government of these States, to secure all the rights of
independent sovereignty to each, and to provide for the
safety and interests of all. In all our deliberations
on this subject, we kept steadily in our view that

12

which appears to us the greatest interest of every true
American, — the consolidation of our Union, in which is
involved our prosperity, political safety, and perhaps
our national existence."

In order to " the consolidation of out Union" the
States gave up the following sovereign rights and con-
ferred them upon the Government of the United States,
viz. :

"The right to lay and collect taxes, duties, im-
posts, and excise ; to borrow money on the credit of
the United States ; to regulate commerce with foreign
nations and among the several States, and with the In-
dian tribes."

Under the last grant of power, the State Govern-
ments cannot decide what persons or property shall be
brought within the domain of any State. They cannot
give any exclusive right to their own citizens to navi-
gate their own and coterminous waters. They cannot
authorize a bridge to be built across a stream within
their own borders where the tide ebbs and flows.

The United States can regulate the commercial in-
tercourse of the citizens of any State with foreign pow-
ers or any other States, and inhibit such intercourse
with foreign countries for an indefinite period. Wit-
ness the embargo of December, 1807, which continued
for eighteen months. This exercise of the " restrictive
energies " of the Government (as they were called) was
to recommend a theory, which, at that time, had very
respectable advocates, that the United States would
become a more prosperous and happy nation if they
would forego, altogether and forever, all foreign com-
merce, and thus promote the great agricultural "interests.

" To establish an uniform rule of naturalization."
Under this exclusive grant the Federal Government

13

has the power to confer the rights of citizenship upon
whom, and as it pleases, in every State of the Union,
and thus give to such citizen, in common with all the
other citizens of any State, all " privileges and immu-
nities of citizens in the several States."

"To establish uniform laws on the subject of bank-
ruptcy." "To coin money, regulate the value thereof
and of foreign coins." These powers are the highest
attributes of sovereignty. They are given exclusively
to the General Government. The right to coin money
by the States was recognized, by the Articles of the
Confederation, to belong to the States.

The power to establish a Bank of the United States
is an incidental power, so adjudged by the Supreme
Court of the United States, and declared by Mr. Madison
in one of his messages to Congress. Another and vastly
important incidental power, which comes home to the
business and interest of every citizen, is the currency of
the country. Mr. Madison, in his message of 1815,
recommended the inquiry whether "the notes of the
United States should be issued, upon motives of gen-
eral policy, as a common medium of currency ;" and in
his message of 1816 he says: "The Constitution has
intrusted Congress exclusively with the power of creat-
ing and regulating a currency of that description"

" To fix the standard of weights and measures." An
exclusive power which enters into the traffic and every-
day domestic concerns of the people of every State.

"To establish post-offices and post-roads." This
gives to the General Government the exclusive power
to establish post-offices, mails, and letter-carriers in
every city, town, county, and State of the United States ;
and to build roads over any part of any city, town, or
place of any State ; and it consequently gives the right

14

of eminent domain, in such cases, to the General Gov-
ernment.

" To promote the progress of science and useful arts,
by securing to authors and inventors exclusive rights."
An exclusive power which comes home to all the peo-
ple of all the States.

" To define and punish piracies and felonies on the
high seas, and offences against the laws of nations."
Exclusive sovereign powers.

" To declare war, raise and support armies." These
are ranked among the highest attributes of sovereignty ;
they are exclusive, and they grant to the General Gov-
ernment unlimited power over the lives and property
of the people of the States, by compelling them, if need
be, to become soldiers ; and, by taxation, to yield up
their property to the public service ; thus giving to it
the absolute control of persons and property, which are
inaptly said to be peculiarly the objects of State con-
cern and protection.

The clauses respecting the militia — the bulwark of
civil liberty and popular government — are most signifi-
cant :

" Congress shall have power " — " to provide for call-
ing forth the militia to execute the laws of the Union,
suppress insurrections, and repel invasions."

" To provide for organizing, arming, and disciplining
the militia, and for governing such parts of them as may
be employed in the service of the United States, reserv-
ing to the States respectively the appointment of the
officers, and the authority of training the militia accord-
ing to the discipline prescribed by Congress."

The only power left to the States over this impor-
tant element of power is to be found in the reservation,
to wit, " the appointment of the officers," " and the au-

15

thority of training the militia according to the discipline
prescribed by Congress." In effect, all the power re-
served to the State Governments over their civic sol-
diers is to prepare them for the use of the supreme
Government, to be called for by that Government to
suppress insurrections of the people " in such State or in
any other State." In short, to place at the disposal of
the supreme power a disciplined army, composed of the
people of each and all the States between the ages of 18
and 45 years. (Act of 1792.)

"No State shall enter into any treaty, alliance, or
confederation, coin money, emit bills of credit, make
anything but gold and silver a legal tender." The
writ of habeas corpus may be suspended by the Gen-
eral, not the State Governments.

The power to pass " bills of attainder or ex post
facto laws " is forbidden to the States, by the Constitu-
tion of the United States, as well as to the General
Government.

" No tax or duty shall be laid on articles exported
from any State." This inhibition is made by the Con-
stitution of the United States on both Governments.

The exception in section 10, art. 1, goes strongly to
prove the absolute subordination of the powers of the
States to the United States. It is in these words :
"No State shall, without the consent of Congress, lay
any imposts or duties on imports or exports, except
what may be absolutely necessary for executing its in-
spection laws ; and the net proceeds of such duties
shall be for the use of the Treasury of the United
States. And all such laws shall be subject to the revis-
ion and control of the Congress." We have italicized the
last branch of this clause as decisive of the question of
the sovereignty of the States.

16

Inspection laws are purely municipal regulations ;
they touch " the every-day institutions, the social arrange-
ments of the community ; " they control their domestic
affairs. A State cannot lay any imposts or duties to
execute their inspection laws without the consent of
Congress, and as an additional humiliation, although
the power so to legislate by a State depends upon the
consent of Congress of the United States, " all such laws
shall be subject to the revision and control of Con-
gress.''''

Another and a most marked evidence of the subor-
dination of the Legislatures of the States, is found in
the following language :

" No State shall, without the consent of Congress, lay
any duty of tonnage, keep troops or ships of war in time
of peace, enter into any agreements or compact with an-
other State or with a foreign power"

In connection with this stern inhibition, — this clear
denial of the sovereignty of the States, — this direct sub-
mission of the legislative power of the State to the will
of Congress, — it becomes us to recollect that the people
of the United States ordained and established this Con-
stitution in order to form a " more perfect union" as
the Union had been made "perpetual." This purpose
could have had no relation to the duration of the Union
of the States. It meant something more ; it was in-
tended to make the Union more perfect by prohibiting
to the States the means which might be used for its
destruction.

An army or a navy, or combinations by "agree-
ments or compacts" between States, or with foreign
powers, would give great power to rebellious States, or
people, in their efforts to destroy the Union, and in their
resistance to the efforts of the General Government to
preserve it.

11

Another declared purpose was " to ensure domestic
tranquillity."

These inhibitions are not only direct and palpable
abrogations of the rights and sovereignty of the States
in these respects, but they clearly indicate that the peo-
ple of States might attempt to disturb the " domestic
tranquillity," or to break up the Union by secession;
and if they did so, that the United States had the right
and the power (the States being without troops or
ships of war, or the strength to be derived from combi-
nations among themselves or with foreign powers) to
restore " domestic tranquillity," and preserve the Union
by force of arms.

In this view of this clause, it is worthy of remark
that by this denial to the States of the right to keep
troops and ships of war in time of peace, the United
States might lose a powerful auxiliary in preparing for
war.

The great State of New York, if permitted to keep
up a considerable military and naval force at her own
expense, might render essential assistance to the United
States, in arming forts, preserving the frontiers from the
inroads of savages, and in repelling the attacks of a
public enemy.

All this was well understood by the sagacious states-
men who made these clauses a part of the Constitution.
They also clearly foresaw, and we know they greatly
feared, attempts at disunion. Balancing the two, they
wisely, in order to diminish the latter evil, yielded the
former advantage.

Can it be said, in the face of these inhibitions, that
the Government has not the constitutional right, nay,
that it is not its absolute duty, by coercion, to put down
rebellion by the people of any State or government ?

2

18

He reads the Constitution with a very indistinct ap-
preciation of the meaning and intent of these clauses,
who will maintain State sovereignty or the right of
secession.

We might upon the fact of this appropriation of all
the essential attributes of sovereignty to the United
States Government, and their denial to the States,
rest our assertion that, by this scheme of a Constitution
for the United States, State sovereignty -was abolished.

But, in our endeavor to exhaust the subject, we
proceed to show, that the States cannot, with appro-
priate language, be called sovereign and independent
States, even within their appropriate sphere.

By article 4, section 1, it is provided, that " full
faith and credit shall be given in each State to the pub-
lic acts, records, and judicial proceedings of every other
State ;" and to Congress is given the power " to pres-
cribe the manner in which such acts, records, and judi-
cial proceedings are to be proved, and their effects."

Upon examining the effect of this clause, it will be
found to subordinate the judiciary of the one State to
that of another. Thus, a citizen of New York goes to
Georgia ; he is sued there, a judgment rendered against
him for a given sum of money. It may be groundless,
although according to the laws of proceeding and the
rules of evidence of the latter State. We put a strong
case. The defendant returns to New York. The plain-
tiff commences a suit in the Supreme Court of that
State. The case comes on for trial. The record of the
judgment rendered by the court of Georgia is " proved "
according to the act of Congress, and the court of New
York must give judgment thereon.

We do not question the expediency of such a pro-
vision, but we aver that it is one clearly inconsistent

19

with the idea that each State possesses sovereign powers
in its domestic affairs, or even so far as to control its
judicial action.

Section 2 : " The citizens of each State shall be enti-
tled to all the privileges and immunities of citizens in
the several States." The Congress of the United
States has the exclusive power of naturalization ; that
is, to give the privileges and immunities of citizens to
such persons as it pleases, and upon such terms as it
may choose ; and such naturalized citizens are, perforce
of this sovereign power, made citizens of all the States.
This presents a peculiar case. The State Governments
are said emphatically to have the control of " the every-
day institutions, operations, and social arrangements of
their community," and yet they have no power to decide
what persons shall be members of their communities !

It is absurd to attribute to a State sovereign' powers,
and at the same time to declare that she has no right to
say what kind or description of persons shall or shall
not participate in the "privileges and immunities"
given to her citizens by her laws.

Section 3, article 4, declares that " new States may
be admitted by Congress into the Union." The States-
rights party insist that ours is a confederacy of sover-
eign and independent States ; and yet no one of these
sovereigns, nor all of them combined, has the power to
decide what people, State, or country shall or shall not
be one of their associates, and thus participate with
them in the government of their country, in its glory or
advantages.

It is believed when the people conferred these sover-
eign attributes upon the General Government, they rel-
egated all essential sovereign rights and powers from
their State systems.

20

Section 4 : " The United States shall guarantee to
every State in the Union a republican form of govern
ment." When the people of the respective States thus
empowered the Government of the United States to give
them a particular form of government, which is the true
meaning of the clause of guarantee, they certainly ad-
mitted that the United States possessed the supreme
ultimate authority in the country, and that the States
did not, in respect to the people of the States, possess
such authority.

The people of the States, as such, gave up, in regard
of their State Governments, that fundamental right recoo;-
nized by the maxim that " every nation has a right, in
its own discretion, to change its own form of govern-
ment, to abolish it and substitute another." In this
case, the people of the States gave up the right to alter
their government from a republican to a pure democracy,
to a monarchy, or to a despotism.

They admitted that they could not, so long as the
Government existed, be subjected to any other than a
republican form of government ; and thus far the peo-
ple of each State yielded their sovereignty and inde-
pendence to the people of the United States.

We close this examination of the scheme of govern-
ment which was prepared by the Convention of 1787,
to be submitted to the people of the United States for
their adoption, under the conviction that it has been
made with candor, and that it has resulted in proving
there is no solid foundation for the belief that the actual
government of our country is a confederacy of sovereign
and independent States, in any sense of the terms ; but
with a clear conviction that the State Governments,
instead of being "free, sovereign and independent
States," as they certainly were when they ratified the

21

Articles of Confederation, became by the present Con-
stitution component and essential parts of the General
Government; the object of State Governments being
merely civil and domestic, " to support the legislative
department of the United States, and to provide for the
administration of the laws."

Our next duty is to show how the Constitution pro-
posed by the Convention was disposed of and adopted,
and how the State Constitutions were adapted to their
new condition in relation to the new government.

The Convention agreed upon the form of the Con.
stitution, which was signed by the delegates on the 17th
September, 1787, and, with the letter of the same date
from Washington, addressed to the President*, of the
Congress, was sent to that body then assembled in Phil-
adelphia, pursuant to a resolution of the Convention,
directing it " to be laid before the United States in
Congress assembled," and expressing the opinion that it
should afterward be submitted to a convention of dele-
gates, chosen in each State by the people thereof, for their
assent and ratification.

It was submitted to Congress on 28th September.
That body sent copies of it to the State Legislatures ;
and the people of the several States were called upon to
elect delegates to conventions to be held on designated
days and places in each State ; which they did ; and be-
tween the 7th December, 1787, and 21st November, 1788,
the people of all the States, except Rhode Island, assent-
ed to and ratified the Constitution of the United States
of America, as it was prepared by the Convention and
submitted to the respective State Conventions, without
alteration. And thus did the people of the United States
of America ordain and establish this Constitution of the
United States of America. And thus does " the fabric

22

of the American Empire rest on the solid basis of the
consent of the people of America, the pure and original
foundation of all legitimate authority." — {Federalist?)

We have asserted, and we believe we have proved,
that the respective States ceased by that act to be
sovereign and independent ; that they became, " in spirit.
and in form, component parts of the Government of the
United States ;" that their constitutions were materially
altered, in order that they might conform to their
changed and subordinated condition.

These State constitutions were originally formed by
the people of the States, in their independent and sover-
eign capacity, through conventions of delegates elected
by the people, and assembled for that purpose; and
they were altered by the same people through the same
agency.

When the people of a State elected their delegates
to a convention, with full power to reject or adopt the
constitution of government presented for their deliber-
ation, which directly by its very terms, and inferen-
tially and necessarily by its spirit and import, essen-
tially changed their respective State constitutions, their
delegates were thus authorized by the people of the
States, if upon full deliberation they should adopt the
Constitution of the United States, so far to change their
State constitutions as would be required to conform
them to the altered condition of their respective States-
They did so ; and thus we find that such changes, radi-
cal as they were, were made by the authority of the
sovereign will.

We cite two strong cases to show the changes thus
made, and we aver that the subsequent action of both
Governments shows that they received the full approval
of the Government and people.

23

By clause 2d, article 6 th, it is declared : " This Con-
stitution, and the laws of the United States which shall
be made in pursuance thereof, and all treaties made, or
which shall be made, under the authority of the United
States, shall be the supreme law of the land ; and the
judges in every State shall be bound thereby, any thing
m the constitution or laws of any of the States to the
contrary notwithstanding.1''

It must be admitted that before the Constitution
was adopted by the people of the United States, the
State constitutions and laws were the supreme law of
the land within their respective jurisdictions, and that
the judges in every State were controlled thereby. It
must also be admitted that as soon as the Constitution
of the United States was established, its Constitution,
laws, and treaties were superior to the constitutions
and laws of the States, and that thus a change was
made by the people of the several States of their re-
spective constitutions, in order that they might be in
conformity with this new and sovereign power.

Again, by the 3d clause of the same article, it is
declared that the members of the several State Legis-
latures, and all executive and judicial officers of the
several States " shall be bound by oath or affirmation
to support this Constitution." This was so essential a
change of the constitutions of the several States as to
forbid those who were the recognized organs of these
Governments to act, until they had taken that oath ;
and that thus not only the soul of each State Govern-
ment was, but that the organs through which that soul
acted were, made obedient to the Federal Constitution,
and that such organs could exist only in obedience to
its commands.

We hold, in conclusion, that as the Constitution of
the United States was the work of the people of the

24

United States of America, they, and they alone, have
power to alter or to abolish that constitution of govern-
ment. When we say the People, we mean the people
of the United States, not the people of a State or many
States, constituting less than a majority of the whole
people.

KEBELLION AGAINST THE UNITED STATES BY THE PEOPLE
OF A STATE IS ITS POLITICAL SUICIDE.

The necessary consequences of this condition of the
people and governments of the States in relation to the
General Government is, that when the people of a State,
not a mere faction, rise up in rebellion against the Gov-
ernment, and use the organs of their State to destroy
the Government of the United States, they destroy the
organism of their State Government, and thus accom-
plish the political suicide of their State Government.
The soul of the State remains, but its organs are de-
stroyed. , The latter cannot act as organs, because they
cannot take the required oath, and cannot perform their
duty to the supreme power in obedience to the com-
mands of the Constitution of the United States.

It must be admitted that the question whether the
State Governments in rebellion are abolished or not, is
a very difficult one. We approach it with diffidence.
The question in the outset is, What is a State ? The
aggregation of a people as a community is not a State
until they have " established & public authority, to order
and direct what is to be done by each in relation to the
end of the association. This political authority is the
sovereignty, and he or they who are invested with it
are the sovereign? When this is done, there is a " body
politic, or State? — ( Vattel.)

We have high authority for asserting that when the

25

Constitution of the State of New York was formed,
" the sovereignty of the people, by our Constitution, was
vested in their representatives in senate and assembly,
with the intervention of the Council of Revision." This
was the " public authority" of the State of New York.
The like may be properly said of the other State Gov-
ernments before the existing Government of the United
States was adopted by the whole people. By that act,
as we have seen, the State Governments, and the people
thereof, were made component parts of the Government
of the United States, and the essential attributes of
their sovereignty were vested in the latter Government.
It is the " undisputed organ of the public will? This is
the state of facts upon which this important question
arises.

It is a maxim of universal acceptance, that " the
people, in their discretion, have a right to alter or abol-
ish one government and to establish another." And it
is therefore true that the people of the United States,
who established the Government of the United States,
have the right to alter or abolish that Government ; and
equally so that the people of one or several States have
not that right.

It is also true that the people of the several States
have the right to alter their several State Governments,
with these limitations : 1st. That such alterations do
not change their relations to the Government of the
United States, or in any respect impair the rights or
powers of that Government in relation to the people or
governments of the States ; and 2d. That they shall es-
tablish a republican government. Thus far, the people
of each State have, by uniting with the people of all
the other States, and thus forming that " body politic'"'
which is, and is known as, the People and Government

26

of the United States, divested themselves of plenary
power over their State Governments.

Under and by virtue of the powers vested by the
Constitution of the United States in its Government,
that Government has the absolute possession of all the
domain within its borders ; and it has full sovereign
power over all the people of the United States, in all
those respects, and to those ends and purposes for
which it was formed and established.

From these positions, it is clear that the Government
or the people of a State have no right or power to with-
draw from the Government of the United States ; and
that when the people of a State rise in rebellion against
the Government of the United States, and make use of
their State Governments as their instruments to destroy,
by force, the Government of the United States, they
are guilty of " high treason." The people of such State,
or all those who unite in such a purpose are Teaitoes,
and as such they forfeit life and property, and all rights
of every kind. Blackstone says : " The natural justice
of forfeiture or confiscation of property for treason is
founded in this consideration : that he who has thus
violated the fundamental principles of government, and
broken his part of the original contract between king
and people, hath abandoned his connection with society,
and hath no longer any right to those advantages which
before belonged to him purely as a member of the com-
munity."

If this be a correct view of the position of traitors,
can it be with propriety said that men so circumstanced
can be considered as the " public authority" of a " body
politic " \ Is it possible that they can individually or
collectively possess the attributes of any power to " or-
der and direct what is to be done by each in relation

•

27

to the end of the association," which is "to promote
their mutual benefit and advantage" ? How can a State
Government be said to exist when the people of the
community, including those who were invested with
the functions of government, have " abandoned all their
connections with society " f It is a strange paradox to
insist that the governments of the people who have
attacked, with great power, the national life, and who,
in every form, by word and deed, declare their purpose
to do so, still form a part of that nation.

As State Governments they no longer exist ; as a
people, they form a part of the whole people of the
United States, owing obedience and allegiance to its
Government, and must be reduced by force " into subor-
dination to the laws."

That provision of the Constitution of the United
States which guarantees to every State a republican
government, necessarily admits or assumes, as a matter
of fact, that the people of a State may abolish their
existing republican State Governments. To establish
another form of government, — a monarchy, an autocracy,
or despotism, — necessarily jmplies that they have abol-
ished their existing republican government."

This suggestion is presented in answer to the opin-
ions entertained by very respectable authority, that the
State Governments cannot be destroyed or abolished by
any act of the people of the State ; and in support of
that opinion, it is averred that as long as there is any
number, however small, of those who are favorable to
the existing State Government, that Government neces-
sarily exists. This view certainly ignores the great
principle of popular government, that the majority of
the people must rule, — that the will of the majority
gives the law to the whole.

The Administration, by several acts, seem to admit

28

that the States in rebellion have abolished their gov-
ernments.

Ji. military government has been appointed for Ten-
nessee. Andrew Johnson, in his appeal to the people,
says : " The State Government Jias disappeared, the
Executive has abdicated, the Legislature has dissolved,
the judiciary is in abeyance." " In such a lamentable
crisis" (the people of the State without a government)
" the Government of the United States could not be un-
mindful of its high constitutional obligation to guaran-
tee to every state in this Union a republican form of
government." aThis obligation the National Govern-
ment is now attempting to discharge. I have been ap-
pointed, in the absence of the regular and established
State authorities, a military governor for the time be-
mg.

We infer from the language of this appeal, — which
we must believe correctly represents the views of the
President and his Cabinet, because we cannot suppose
Governor Johnson would have been sent to Tennessee
without having precise instruction, — indeed, it may well
be presumed, as a matter of wise precaution, — that this
appeal had received the approval of the Government.
It speaks of the " performance by the Government of
its constitutional duty to the State," under the guaran-
tee clause. It declares " the State Government has dis-
appeared," and consequently that the Government of
the United States was to perform its constitutional
obligations by giving to the people a government of a
republican form.

If the former State Government was not abolished
by the rebellion of the people, then that Government
still exists ; and then there was no constitutional obli-
gation to give the loyal people another government.

As the Governor had abdicated and the Legislature

29

was dissolved, all that was necessary was, that a Gov-
ernor and Legislature should be elected under the pro-
tection of the power of the United States, by the loyal
people of the State. Such abdication and dissolution
do not invoke the exercise of the power of the United
States under the guarantee clause.

We entertain no doubt whatever, that it is the duty
of the Government to establish provisional governments
in all the rebellious States. Under the conviction that
by the energy of the Executive, the skill of our gen-
erals, and the bravery of our soldiers, this cruel war, so
far as it respects the action of large armies, will be
shortly terminated by our glorious victories, we believe
the Government will be driven to the conclusion that
the people in rebellion have destroyed their govern-
ments, and the only means of restoring to the Union-
men of those States the protection of regular govern-
ments, and to the citizens of other States their rights
and privileges in those States, will be by establishing
territorial governments for the people of all States in
the rebellion.

It is not improbable that the traitors, when their
armies are vanquished and their assumed governments
are dispersed, will perversely refuse to return to a due
subordination to the laws of the United States.

It is always to be remembered in regard to the
States in rebellion, that they form a part of the domain
or territory of the United States ; that " the United
States is the sovereign in possession, and that the peo-
ple of the State (in rebellion), once one of the United
States, are not."

The people of Western Virginia, holding the opin-
ion that their State Government was abolished by the
treason of the people in other parts of the State, with
the organs of that Government have formed another

30

government, which has been recognized by the United
States as the existing government of that State.

EMANCIPATION.

The President, in his most admirable proclamation,
recommended to the people of the United States to im-
plore spiritual consolation in behalf of all who have
been brought into afflictions by the casualties and ca-
lamities of sedition and civil war.

The Secretary of War, in his general order, dated
April 9, 1862, ordered thanks to be given to the Lord
of Hosts in delivering this nation, by the arms of pat-
riot soldiers, from the horrors of treason, rebellion, and
civil war.

We have thus the highest authority for saying that
we are engaged in a civil war, which Vattel (Book 3,
chap. 13, § 295) and other authoritative publicists
declare is a public war. " The war between the two
parties stands on the same ground, in every respect, as
a public war between two different nations." " They
decide their quarrel by arms, as two different nations
would do. The obligation to observe the common laws
of war toward each other is, therefore, absolute." When
the blockade of the rebel ports was declared, France and
Great Britain decided that both parties, being public
enemies, were entitled to the rights of belligerents.

We refer to the fact that our Government, by ex-
changing prisoners, has treated this as a public war.
This is assuredly the common sense view of this sub-
ject, and we rejoice that it is thus authoritatively set-
tled, because decisive consequences must follow in regard
to slavery, under the laws of war.

It is well settled (see Vattel, Book 3, chap. 9, § 165,
Booty) that when an army advances into the country
of its enemy, " the established laws of war give to an

31

enemy the use and enjoyment of real property of which
he obtains possession/' and the absolute ownership of
all personal property which falls into his hands. The
latter is called booty, and, except ships, becomes vested
in the captors the moment they acquire a firm posses-
sion." With regard to ships, by the general rules of
maritime law, condemnation is necessary to the complete
investment of the property in the captors. Wheaton's
Elements, &c, p. 432, may be referred to in support of
this rule, with the authorities tp which he refers.

" Negroes, by the laws of the States in which slavery
is allowed, are personal property. They, therefore, on
the principle of those laws, like horses, cattle, and other
movables, are liable to become booty, and belong to
the enemy as soon as they come into his hands."

" Belonging to him, he was free to apply them to
his own use, or set them at liberty. If he did the lat-
ter, the grant was irrevocable ; restitution was impossi-
ble." " Nothing in the laws of nations will authorize
the resumption of liberty once granted to a human
being." — (Hamilton.^

Vattel, § 162 — " We have a right to deprive an
enemy of his possessions ; of every thing that may aug-
ment his strength, and enable him to make war. This
every one endeavors to accomplish in the manner most
suitable to him." The slaves augment the strength of
an enemy; we, therefore, have the right to take and
free them.

Apply these well-settled laws of war to the course
of the advance of our armies into the enemy's country,
and absolute, immediate emancipation follows, in regard
to all persons held as property by the laws of the rebel
States.

To allow slaves thus falling into our hands, or which

82

have been induced to come into our camps as an asylum
to the oppressed, " to fall again under the yoke of their
masters, and into slavery, is as odious and immoral a
thing as can be conceived. It is odious because it brings
back to servitude men once made free."

Apply this to the case of the negroes who, in South
Carolina, are now taken care of by the Government,
and treated as free men. They form " a colony of civili-
zation " in that State.

We close this too much extended examination with
the following, from Blackstone, upon the laws of nature
as they effect the liberty of man :

" The Deity has constituted an eternal and immutable law, which
is indispensably obligatory upon all mankind, prior to any human
institution whatever. This is what is called the Law of Nature,
which, being coeval with mankind and dictated by God himself, is of
course superior in obligation to any other. It is binding over all the
globe, in all countries, and at all times. No human laws are of any
validity contrary to this ; and such of them as are valid derive all
their authority mediately or immediately from this original."

We give a commentary, written in 1775, by Ham-
ilton :

" Upon this law depend the natural rights of mankind. The
Supreme Being gave existence to man, together with the means of
preserving and beautifying that existence.

" He endowed him with rational faculties, consistent with his duty
and interest, and invested him with an inviolable right to personal
liberty and personal safety." * * *

" Natural liberty is a gift of the beneficent Creator to the whole
human race." * * * " Civil liberty is founded on that, and can-
not be wrested from any people without the most manifest violation
of justice. Civil liberty is only natural liberty modified and secured
by the sanctions of civil society. It is not a thing in its own nature
precarious and dependent on human will and caprice ; but it is con-
formable to the constitution of man, as well as necessary to the well-
being of society."

April, 1862. JAMES A. HAMILTON.

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