The Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832
Of the Social Compact of the Citizens of the different States in the American Union, in the formation of the General Constitution, taken in connexion with the real or supposed compact of the citizens of each State, in the formation of its own Constitution or State Government.
In order to form distinct ideas on the subject of the present chapter, it will be necessary to consider the situation of the thirteen states which first adopted the general constitution, immediately previous to that important transaction. From the year A. D. 1776, when Congress declared the colonies free and independent states, the war with Great Britain was carried on under articles of confederation, the powers conferred on the Provincial Congress, by which, may be considered as constituting the first general government of these territories or provinces. The project of a union, however, seems first to have been suggested some twenty or thirty years previous, by commissioners appointed by the colonies, at the call of the crown. These commissioners met at Albany, in July, 1754, and as among them, were found such discordant materials, as Governor Hutchinson, Governor Pownall, and Dr Franklin, entertaining political opinions so very different,—it might be a matter of curiosity to examine thoroughly a plan of government which is principally ascribed to Dr Franklin, and to which, it appears, the others agreed. It must suffice however, to observe, that the general government was to unite the colonies of Massachusetts Bay, New Hampshire, Connecticut, Rhode Island, New York, New Jersey, Pennsylvania, Maryland, Virginia, North Carolina and South Carolina, and be administered by a President General, to be appointed by the crown; and a grand council, to be chosen by the representatives of the people of the several colonies, met in their respective assemblies. The assent of the President, who constituted the executive, was requisite to all acts of the grand council; the members of which were to be chosen every three years. The general government was to have power to make treaties with the Indians, &c.; raise and pay soldiers, and equip vessels, &c.; to make laws, to lay and levy general duties, imposts and taxes. Each colony was to retain its own constitution, except so far as it might be altered by the act of parliament, which should establish the general constitution; that is, so far as they were inconsistent with the general constitution. Any colony however, was to be at liberty to defend itself on sudden emergencies. This project, though agreed to by Pownall and Hutchinson, was rejected in England.
To return; the government established by the articles of confederation, though it carried the country through the arduous conflict with so powerful a country as Great Britain, yet would hardly have been sufficient to do so, if the sense of common danger, as well as an enthusiastic ardor in pursuit of what they esteemed their natural rights and liberties, had not sustained the people. These powerful motives supplied what was wanting through the inefficiency of this system, and without their aid, the struggle for independence would have been weak and unsuccessful. But the hurry of arms, and the uncertainty of the final result of the conflict, rendered it impossible, while the suspense lasted, to remedy the evils and defects of this system of confederation, though they were most sensibly felt; since Congress were not able to bring into the field, or to sustain while there, so much of the strength of the country, as its extreme exigencies frequently required. The desperate struggle might not have been of so long continuance, if the provincial congress had been able to enforce its requisitions, instead of being obliged to rely on the provinces or states, for that purpose.
After the termination of the war, which was brought to a successful close in 1783, by a treaty with Great Britain, acknowledging the independence of the United States, and the bond which connected them with that country was severed, the states were left in a state of nature, and consequently were at liberty to assume whatever relations towards each other, they thought expedient, or could agree upon. It is true, they were at that time associated or allied together by the articles of confederation, and whatever duties or obligations they had assumed upon themselves by virtue of those articles, were still binding. Yet, as those articles were generally admitted to be insufficient for the purposes for which they were adopted, and it was proposed, if practicable, to frame a government less liable to this objection, the articles of confederation may be wholly overlooked, so far as the subject of this chapter is concerned.
The relation which the several states had to each other at that time, being thus settled, it remains to consider, what relation the citizens of each state had to their own state governments and towards each other, when the federal constitution was adopted. This is sufficiently evident. Because, as soon as the connexion of the provinces or states, with the British government was completely dissolved, by the treaty of 1783, acknowledging their independence, the authority of the several state governments, over their respective citizens, was either the result of an express compact by the people of each state for the formation of a state government; or, without any such express compact, derived its sanction, in part, from long previous usage under the colonial or provincial government; and, as to the rest, though in some few instances it might seem to be founded on a temporary assumption of power, arising from the extreme urgency of the case, yet was immediately ratified by the approbation of the people, or sanctioned by their peaceable and ready acquiescence. If For, the state constitutions were adopted by the people of the respective states at different periods of time. Some, while the revolution was going on; some after the termination of the war; and some but lately. Some of these, therefore, must be considered as being governed, from the time of the declaration of independence to the formation and adoption of constitutions by the conventions of their respective states, by rulers chosen under a temporary government, grounded merely on a supposed or implied compact, to conform to the usages adopted while under the colonial government, as far as was consistent with the change of condition and circumstances ; because the colonial government was dissolved, and yet no other had been expressly agreed. upon; and the colonial government being abolished, there remained no authority for any other, except such as must be inferred from the acquiescence of the people.
If, at this critical time, therefore, any acts should appear to be done by the rulers, beyond their express authority, in order to insure the public safety merely; yet the urgency of the occasion, the danger of delay in order to obtain the express concurrence of the people, and the fair intentions of the rulers, seem to furnish a sufficient excuse. For, it cannot be doubted, that in cases of extremity, where there is not time to wait for express instructions, the rulers having it in their power to do certain acts, which they think necessary to preserve the citizens, though such acts are not strictly within the scope of any powers expressly delegated to them, will do well to assume this responsibility. And though such acts, if performed by the rulers from motives of personal aggrandizement, or other considerations merely selfish, would have deserved the severest censure and animadversion, as consisting in a tyrannical usurpation of power; yet, when actuated by a regard for the general welfare alone, the rulers have resorted to them from a want of any other safe resource, they become highly praiseworthy. It is true, if such acts are thought inexpedient by the people, and as so, are rejected by them, they will not be binding upon any one; yet, until so rejected, they may be considered as sanctioned by the tacit acquiescence of the citizens; and if they are adopted or expressly approved of by the people, they become as effectual as if authorized by them in the first instance.
By a reference to the state constitutions, it will immediately appear, that though the powers delegated in them by the people of each state, vary in extent and duration ; yet they are all republican in their form, consisting of a legislative body, variously divided, an executive or chief magistrate, and a judiciary. These for the most part are independent of each other; and, with the exception of the judiciary, depend on popular suffrage for their offices. In some states, however, the judges also are elected by the people.
It does not, however, come within the limits of this work to enter into any particular detail, as to the forms of the various state governments. For full information in relation to them, reference must be made to the collections of the laws of each state, and to its history from the time of the commencement of hostilities in the American revolution, down to the time when such constitutions were respectively adopted.
From the view of the subject that has just been taken, however concisely and imperfectly, it sufficiently appears, that at the time of the formation of the federal constitution, the people of the several states were living under legitimate state governments, independent of each other, and having no further connexion with each other, than by means of the articles of confederation; and, consequently, that if those articles had been abolished, without the substitution of the present constitution or some other, the states would have been as entirely free from all dependence upon each other, as the kingdoms of France and England are at this moment. When the constitution therefore, was submitted to the different states for their consideration, to be adopted by them if they thought expedient, each state, being thus wholly independent of the rest, considered itself, and was considered by all the others, and without doubt very justly, at perfect liberty either to accept or to reject it at discretion, and this without any obligation to take into view any thing beyond its own interests. The circumstance that a majority of the states were in favor of its adoption, had no operation whatever to bind the others, though a minority; for, each state had then a natural right to act for itself, without being justly subject to the control of any other state or nation. If the two states of the thirteen, North Carolina and Rhode Island, had thought best not to join the Union, they would have remained in a state of nature in relation to the others, that is, with all the rights and liberties of an independent tribe or distinct people, and would neither have been bound by its laws, nor could justly have been compelled to submit to its power.
During the war, the articles of confederation, as has been suggested already, were found defective in many respects; especially, because under them, the congress could neither raise men nor money of themselves; they could not adopt any general measures for the public safety, unless the states were unanimous; and could do but little more than recommend measures to the different states, which their legislatures adopted, enforced, rejected, or neglected, as they saw fit.
After the termination of the war, the confederation had no power whatever to provide for the payment of the national debt; foreign nations hesitated to enter into treaties with the states, because under the articles of confederation, Congress had no power to enforce a compliance with it by the several states. Another defect was that thirteen distinct judiciaries had a constitutional right to decide on the same subject. And generally, as observed by a distinguished historian and biographer, it was found impossible for a government to answer the purposes for which it was established, while the enforcement of its decrees or acts, depended on the discretion of other parties.
Further; the unsettled state of public affairs after the treaty of 1783; the want of subordination of the people to their respective state governments; the want of good faith in some of the state governments; and the consequent want of some sufficient tribunal to compel its observance; and the little regard paid by some of the state governments, to the most earnest recommendations of Congress; rendered it absolutely necessary to adopt some form of government more energetic than that established by the articles of confederation. On account of these defects, as well as many others, it was thought advisable to amend these articles, so as to remove as far as possible, all the evils arising from them. A motion was made accordingly by Mr Madison, the late president, for a proposition to all the other states to meet in convention, and digest a form of government adequate to the exigencies of the Union. It was not intended however, at this time by Congress, to introduce an entirely new system, but merely to amend that of the confederation. For the delegates to the convention were appointed, ‘ for the sole and express purpose of revising the articles of confederation and reporting to Congress alterations therein.’ The defects of that system however were considered incurable, and the convention, though perhaps in strictness it did not come within the terms of their commission, made a draft of the present constitution, with the exception of the amendments which have since been made, and recommended it to the citizens of the United States for adoption. This constitution being afterwards ratified and adopted by all the states, all objections on account of the previous informality just alluded to, are wholly removed by the voice and sanction of the people. It was at first adopted by eleven of the states only out of thirteen, and North Carolina and Rhode Island afterwards acceded to it.
The present constitution of the United States is therefore a social compact made by the inhabitants of certain territories, which, previously to its adoption, had local governments established within them, organized with powers, which acknowledged no superior, as long as they did not overstep the limits set to them either expressly or tacitly in the respective state constitutions. Cut, in the adoption of the general constitution, the supremacy of the state governments, as well as the independence of the states was limited in the same degree precisely, as they became bound by their own voluntary act, to obey all laws made by virtue of the general constitution. For, the supreme power, within the limits prescribed in it by the people of the United States being taken from the state governments, if it had ever been conferred on them, was bestowed on the general government; or if otherwise, was directly granted by the people to the general government. This is apparent, because the general constitution was made or agreed to, by the people of the thirteen states, the people of each state then constituting a distinct independent tribe or nation, and each tribe or nation acting in its original capacity, as one of the elements of this compact, and exercising those natural rights which belonged to each as an independent tribe or nation, before this general compact was made in the constitution of the United States. It would seem to be a great mistake, to suppose that this general constitution was made by the state governments, on behalf of the independent nations under their government; for, they had no authority from the people of their respective states to do any such act: On the contrary, special delegates were chosen by the people of each state respectively, for the express purpose of deliberating upon, and, if they thought fit, of adopting the constitution proposed. The ordinary representatives of the people elected to serve in the state governments, were not intrusted with the management of this important transaction, but recourse in each state was had to the highest known abilities and integrity, which it was supposed might be drawn forth on this occasion, however averse to aim at making a figure in legislative assemblies.
It may be objected, that agreeably to the preamble to the constitution of the United States, the constitution is to be considered as adopted by the people of all the states, acting as the elements of a single nation, without any reference to the state governments, or to the fact that they were members of independent organized societies already existing. But the preamble, on the supposition that this is its true construction, merely shows the light in which the people agreed to be viewed in the adoption of the constitution. Their agreement however cannot alter the fact, and that the other construction is the true one, seems to result from the following considerations.
1. If the people of the United States had intended to adopt a constitution, in their collective capacity as one great nation, without any reference to territorial or state governments, or to the independence of each individual state, there should have been no calling of separate state conventions for the adoption of the constitution, but delegates should have been chosen from all the states to one general convention, for the purpose of deliberating upon and adopting and ratifying it. But, in fact, after the constitution was approved of by the convention, whose whole authority in strictness was confined to revising the articles of confederation and proposing alterations in them, the ratification of the constitution was given by delegates chosen by the several states for the purpose of deliberating upon, and, if they saw fit, of adopting and ratifying it. The constitution therefore was adopted by the citizens of the several states, acting as distinct nations, the ratification being given by the respective delegates of each, meeting in state conventions.
2. If the constitution were instantaneously abolished, the union would be resolved, not into one nation in a state of anarchy as to national supremacy, but into the several nations inhabiting the territory of the respective states, and under independent and supreme heads; for, all those powers which are taken from the state governments expressly by the constitution, or tacitly by the mere act of adopting it, if the constitution should be abolished, will, without any further act immediately revive to the state governments respectively.
3. The compact made in the general constitution, may be rescinded by the people in the same manner which was adopted in the making and ratification of it, i. e. the same majority of all the states acting as nations, may rescind it. The states or nations, acting politically, are therefore the elements of the general compact, and not the individuals of all the states, acting as the elements of one great nation.
4. Though the state legislatures have no right at all to rescind the constitution, even if every state legislature in the United States were unanimously in favor of rejecting it, yet, it is only because the people of the respective states have never entrusted them with any such power. Yet, it is apparent, if the people in each of the states should give the power to decide on this momentous subject, to delegates chosen by them to meet in their respective state conventions, those delegates might dissolve the union.
5. If the constitution was framed and adopted by the people of all the states, acting as members of one great nation, then this absurdity would follow, that if there had been a majority in any individual state against adopting the constitution, still that state must have come in, because the majority of the people of the United States were in favor of adopting it. This shows conclusively that, however the people were willing to have the constitution viewed after its adoption, they in fact acted as independent nations in adopting it.RIGHTS OF AMERICAN CITIZENS: General Rights; Division One RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments RIGHTS OF AMERICAN CITIZENS: The Independence of the States RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers RIGHTS OF AMERICAN CITIZENS: The Rights of Juries RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights These may also interest you. POLITICAL CONSTITUTIONS by Johannes Von Muller (1832) THE LIBERTY OF THE PRESS by Charles F. Partington 1836 The Importance of the Freedom of the Press; by Senator Ebenezer Mack (1791-1849) Constitution of the United States and it’s Governmental Operations (In Plain English) Non-Revisionist Politically Incorrect History of America from the Ancient Authors Part 1