CHAPTER VIII.

I

THE FEDERAL CONSTITUTION.

HAVE hitherto considered each State as a separate

whole, and have explained the different springs which the people there put in motion, and the different means of action which it employs. But all the States which I have considered as independent are yet forced to submit, in certain cases, to the supreme authority of the Union. The time is now come to examine the portion of sovereignty which has been granted to the Union, and to cast a rapid glance over the Federal Constitution.

HISTORY OF THE FEDERAL CONSTITUTION.

Origin of the first Union. - Its Weakness. — Congress appeals to the Constituent Authority. — Interval of two Years between this Appeal and the Promulgation of the new Constitution.

THE thirteen Colonies, which simultaneously threw off the yoke of England towards the end of the last century, had, as I have already said, the same religion, the same language, the same customs, and almost the same laws; they were struggling against a common enemy; and these reasons were sufficiently strong to unite them one to another, and to consolidate them into one nation. But as each of them had always had a separate existence, and a government within its reach, separate interests and peculiar customs had sprung up, which were opposed to such a compact and intimate union as would have absorbed the indi

vidual importance of each in the general importance of all. Hence arose two opposite tendencies, — the one prompting the Anglo-Americans to unite, the other to divide, their strength.

As long as the war with the mother country lasted, the principle of union was kept alive by necessity; and although the laws which constituted it were defective, the common tie subsisted in spite of their imperfections.* But no sooner was peace concluded, than the faults of this legislation became manifest, and the state seemed to be suddenly dissolved. Each Colony became an independent republic, and assumed an absolute sovereignty. The Federal government, condemned to impotence by its Constitution, and no longer sustained by the presence of a common danger, witnessed the outrages offered to its flag by the great nations of Europe, whilst it was scarcely able to maintain its ground against the Indian tribes, and to pay the interest of the debt which had been contracted during the war of independence. It was already on the verge of destruction, when it officially proclaimed its inability to conduct the government, and appealed to the constituent authority.†

If America ever approached (for however brief a time) that lofty pinnacle of glory to which the proud imagination of its inhabitants is wont to point, it was at this solemn moment, when the national power abdicated, as it were, its authority. All ages have furnished the spectacle of a people struggling with energy to win its independence; and the efforts of the Americans in throwing off the English yoke have been considerably exaggerated. Separated from

* See the Articles of the first Confederation, formed in 1778. This Constitution was not adopted by all the States until 1781. See also the analysis given of this Constitution in the Federalist, from No. 15 to No. 22 inclusive, and Story's "Commentaries on the Constitution of the United States," pp. 85-115.

↑ Congress made this declaration on the 21st of February, 1787.

their enemies by three thousand miles of ocean, and backed by a powerful ally, the United States owed their victory much more to their geographical position than to the valor of their armies or the patriotism of their citizens. It would be ridiculous to compare the American war to the wars of the French Revolution, or the efforts of the Americans to those of the French, when France, attacked by the whole of Europe, without money, without credit, without allies, threw forward a twentieth part of her population to meet her enemies, and with one hand carried the torch of revolution beyond the frontiers, whilst she stifled with the other a flame that was devouring the country within. But it is new in the history of society, to see a great people turn a calm and scrutinizing eye upon itself, when apprised by the legislature that the wheels of its government are stopped, -to see it carefully examine the extent of the evil, and patiently wait two whole years until a remedy is discovered, to which it voluntarily submitted without its costing a tear or a drop of blood from mankind.

When the inadequacy of the first constitution was discovered, America had the double advantage of that calm which had succeeded the effervescence of the Revolution, and of the aid of those great men whom the Revolution had created. The assembly which accepted the task of composing the second constitution was small;* but George Washington was its President, and it contained the finest minds and the noblest characters which had ever appeared in the New World. This national Convention, after long and mature deliberation, offered to the acceptance of the people the body of general laws which still rules the Union. All the States adopted it successively.† The new Federal

* It consisted of fifty-five members; Washington, Madison, Hamilton, and the two Morrises were amongst the number.

It was not adopted by the legislative bodies, but representatives were elected by the people for this sole purpose; and the new Constitution was discussed at length in each of these assemblies.

government commenced its functions in 1789, after an interregnum of two years. The Revolution of America terminated precisely when that of France began.

SUMMARY OF THE FEDERAL CONSTITUTION.

Division of Authority between the Federal Government and the States. The Government of the States is the Rule, the Federal Government the Exception.

THE first question which awaited the Americans was, so to divide the sovereignty that each of the different States which composed the Union should continue to govern itself in all that concerned its internal prosperity, whilst the entire nation, represented by the Union, should continue to form a compact body, and to provide for all general exigencies. The problem was a complex and difficult one. It was as impossible to determine beforehand, with any degree of accuracy, the share of authority which each of the two governments was to enjoy, as to foresee all the incidents in the life of a nation.

The obligations and the claims of the Federal government were simple and easily definable, because the Union had been formed with the express purpose of meeting certain great general wants; but the claims and obligations of the individual States, on the other hand, were complicated and various, because their government had penetrated into all the details of social life. The attributes of the Federal government were therefore carefully defined, and all that was not included among them was declared to remain to the governments of the several States. Thus the government of the States remained the rule, and that of the Confederation was the exception.*

*It is to be observed, that, whenever the exclusive right of regulating certain matters is not reserved to Congress by the Constitution, the States may

But as it was foreseen that, in practice, questions might. arise as to the exact limits of this exceptional authority, and it would be dangerous to submit these questions to the decision of the ordinary courts of justice, established in the different States by the States themselves, a high Federal court was created,* one of whose duties was to maintain the balance of power between the two rival governments, as it had been established by the Constitution.†

POWERS OF THE FEDERAL GOVERNMENT.

Power of declaring War, making Peace, and levying General Taxes vested in the Federal Government. What Part of the Internal Policy of the

Country it may direct. -The Government of the Union in some Respects more centralized than the King's Government in the old French Monarchy.

THE people in themselves are only individuals; and the special reason why they need to be united under one government is, that they may appear to advantage before foreigners. The exclusive right of making peace and war, of

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legislate concerning them till Congress sees fit to take up the affair. instance, Congress has the right of making a general law on bankruptcy, which, however, it neglects to do. Each State is then at liberty to make such a law for itself. This point, however, has been established only after discussion in the law courts, and may be said to belong more properly to jurisprudence.

*The action of this court is indirect, as we shall hereafter show.

† It is thus that the Federalist, No. 45, explains this division of sovereignty between the Union and the States: "The powers delegated by the Constitution to the Federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the internal order and prosperity of the State."

I shall often have occasion to quote the Federalist in this work. When