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contrary, without any express grant of power. But if it vests in the states severally, then the Union has no sovereignty but what is expressly delegated to it, and its power over the territories is limited to the express grant, and what is necessarily incident to it. Since, then, there is no express grant of plenary sovereignty over the territories in the constitution, it becomes necessary, ih order to ascertain whether the general government possesses it or not, to ascertain whether, under our system, the general sovereignty vests originally in the Union, or elsewhere.
For ourselves, we agree perfectly with Mr. Rhett in his position, that the political sovereignty with us vests originally, not in the Union, but in the states severally which have made the Union, and from which the Union derives its existence and all its powers. Nevertheless, he must pardon us, if we say we cannot, in all cases, accept the reasoning by which he sustains this position, and are unable to adopt his view of the state governments. He maintains that the general government is not sovereign, not only on the ground that it is the creature of the states, but also on the broader ground, that under the American system no government is sovereign, not even the state governments themselves. If government in general, if the state government itself, is a mere agency, deriving all its powers from an authority antecedent to government, then, a fortiori, the federal government in particular. He says, –
“Sir, it is a truth, vital to all free popular governments, that sovereignly can never be in government. The fundamental doctrine, on which all our free institutions rest, is that government is nothing of itself, but is simply the agent of the people. Make government sovereign, and the people are subject. They are ruled, and do not rule them selves. To attempt to alter, change, or abolish, the forms of government over them will, then, not be a right in the people, but treason to the existing government, for which they may rightfully be gibbeted or put to the sword. I repeat the position, that sovereignty, in free, popular governments, can never be in government. It is, under our systein of government, neither in the general nor in the state governments. Both are but agencies.”
Understand by people, the states, and restrict the doctrine asserted to the federal government, this may pass; but understand by people, not the state, but population, and extend the doctrine to the state governments, it is inadmissible. The federal government, it is historically certain, is the creature of the states, and, saving the faith they have pledged to each other, the states have the same right to alter, change, or abolish it that the principal has to alter, change, or revoke the powers he has given to his agent. But we cannot say as much of the state governments. They are governments, not agencies ; for there is and can be in the states no anthority antecedent to them to create them. The people as population have never made them, and therefore cannot unmake them. The people as the state, the legally constituted people, are inconceivable without the government, are the government itself in fact, as well as in principle, and for them to abolish it would be to commit political suicide.
But “make the government sovereign, and the people are subject.” Unquestionably. Sovereign and subject are correlatives, and one necessarily implies the other. Where there is no subject, there is no sovereign; for nothing can be over, where there is nothing under. If you assert sovereignty, you must concede subjection. Then, the people,
are ruled, and do not rule themselves.” Granted. But what is government for, if not to rule the people? and is that government which neither rules them, nor has the right to rule them? Does government operate on things only, subject things only, never persons ? Are not the people, every man, woman, and child, of them, subject to the laws? And is it not the boast of our institutions, that no one is above the laws ? How can you say that the people are subject to the laws, and yet not subject to the government? and if governed by the laws, that they are not ruled? You must either deny all government of persons, and exempt from the dominion of the law all except things, or else you must concede that the people are subject to governinent and ruled by it.
But if they are ruled, they do not rule; and the fundamental principle of our institutions is that the people rule. Rnle as the government, conceded ; as population taken distributively, denied. The confusion arises from the ambiguity of the word people, which, in this country, is taken in two senses, very distinguishable one from the other. The term people means, 1. Population, the whole number of persons inhabiting the territory or country ; 2. The state, commonwealth, or political sovereignty. In the latter sense, as the state, the people are sovereign, and rule; in the former sense, they are not sovereign, but subject, and are rnled. Numerically considered, the people in the one sense
may or may not be commensurate with the people in the other sense; but in no actual case are they so. The people, as population, are the whole population, men, women, and children, freemen and slaves ; as the state, they may include only a small number, in some countries more, in others fewer. They are some two hundred thousand out of thirtyfive millions in France, and with us they never exceed, in faut never equal, the whole number of free male citizens twenty-one years of age and over ; and in most cases never include more than the free white male citizens of the same age and over; and these in South Carolina, for instance, do not exceed one in ten, and in no state one in five, of the whole population.
But these free male citizens, the electors, are themselves save in the simple act of voting, subject to the laws, and ruled in the same manner as the rest of the inhabitants. Moreover, the elective franchise, which they possess and exercise, they possess only by virtue of law, and can exercise only according to the law. They may alter, change, or abolish the existing form of government, it is true; bui by virtue of law, and only in the way, and by the means, the existing form authorizes; and the attempt to do it in any other way, or by any other means, would be treason, and punishable as such, by the laws of every state in the Union. To abolish the government is, under our system, no more the right of the people, than it is under any other system, as Mr. Dorr and his partisans in Rhode Island discovered to their cost.
The insane doctrine of but too many of our politicians on this subject arises from the ambiguity we have pointed out in the word people. From the fact that the political sovereignty with us is unquestionably vested in the people as the state, they sophistically conclude that it vests in the people as population; that is, in the people out of, or antecedent to, the state. But where there is no state, no Tóles, no political entity, there is and can be no political sovereignty. Out of the state and antecedent to it, if you may make the supposition, the people are not a state, have no political existence, and therefore are not sovereign, and have no sovereignty. It is absurd to assume that the sovereignty vests in them; and if it does not in this sense vest in them, they of course cannot delegate it to the state, nor can the state derive it from them. The states could delegate sovereignty to the Union, for they were antecedent to it, and were, prior to it, sovereign states, and possessed the powers they delegated. But the people could delegate no sovereignty to the state or state government; for, antecedently to the state government, they were no political entity, and therefore had no sovereignty to delegate.
Here is the refutation of the prevalent fallacy of the popular origin of government. The administration of government may be popular, and is so with us; but its origin is never popular. The people cannot make the constitution ; for to make the constitution is itself an act, and the most sovereign act, of the political sovereignty; and antecedently to the constitution the people are not sovereign, since antecedently to it, as we have seen, they have no political existence. What is not cannot act. Where there is no sovereign, there can be no act of sovereignty. To assume that the people make the constitution is, then, to assume them capable of performing an act of sovereignty before they exist as a sovereignty, which is absurd. It would be to asssume that sovereignty is self-created,-an impossible supposition. Nothing can be self created, for the very solid reason, that nothing can act before it is. The constitution must always be octroyée,-granted or imposed by authority, -or it has and can have no legal force or vitality. But if we suppose as already existing an authority competent to grant or impose a constitution, we suppose the state to be already constituted, and the sovereign authority to exist. When the state already exists, with its sovereign authority, the people owe it allegiance, are subject to it, and have neither the right nor the occasion to make the constitution.
In denying the popular origin of government, we neither deny the legitimacy nor mistake the character of our American system of government. The doctrine of the popular origin of government—that is, that government is instituted by, and derives its powers from, the people, antecedently, logically, or chronologically considered, to the state-is no American doctrine, and implied in no American institution. It is an exotic, brought hither from the gardens of foreign theorists, and should be rooted up and rejected by every American who loves his country, and would be able to distinguish between the state and the mob.
Not one of our state governments has had a strictly popular origin; for there has never been with us a moment when the people were unconstituted or without government, and free, without regard to existing authority, to institute
government for themselves. We are not so rash as to pretend that the people here have never been guilty of any irregularity, or that all their proceedings are defensible in strict law; but we do say, and are ready to maintain against all challengers, that what with us is called making the constitution, with one or two apparent, but not real, exceptions, has been nothing but a modification of a previous constitution, and a modification effected, not by the people as population antecedent to the state, but, if by the people at all, the people as the state, by virtue of previously existing political authority. The conventions which have modified the old constitutions and formed our present constitutions have all been called, or held to be called, by an already constituted public authority, by virtue of public law, and according to law. Their whole authority as conventions has been derived from the government which authorized them, and there has never been a inoment when to call conventions without the authorization of the existing government, and to attempt to enforce their acts against it, was not treason, and as such punishable by existiny law.
The colonists on arriving here were, as before leaving home, subject to the laws of the mother country; and the colonial governments were constituted governments by the authority of that mother country, and derived from it all their powers. Our present governments are only the mediate or immediate continuations of the colonial governments, by whose authority they have from colonial become state governments. In no instance has the change been effected but by their authority. Mr. Dorr and his friends attempt ed, in the case of Rhode Island, to effect a change by popular, instead of legal authority, and failed. This is strictly true of all the old thirteen colonies, as nobody can pretend to deny. With regard to the other states admitted into the Union since the adoption of the federal constitution, nearly all have formed their constitutions by authorization of the general government through their territorial governments. Vermont and Michigan, perhaps Kentucky and Tennessee, though of these we cannot speak positively, formed their constitutions in the first instance in conventions called without legal authority ; but the defect of legality was subsequently supplied by the acknowledgment of the governments in contravention of whose authority they formed them. Maine became a state by the consent of Massachusetts, on whom she depended, and the authority of congress.