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and not published and prescribed (78). The convention was not a convention of the people of the United States (79). There was no authority to call a general convention of the people (80). Indeed, Rhode Island never took part in the convention and sent no delegates to it. It was submitted to the citizens of the thirteen states, between whom existed a league, not because there was any authority from each of the thirteen to formulate a plan and submit a draft, but simply because of the plenary power of any body of freemen to submit a proposition to any other body or individual, when impelled to do so from the exigency of the occasion. It did not bind any individual till he assented to it. It did not affect any state or government, therefore, till its citizens, through their representatives, assented to it. It did not bind the people of any state until and unless eight other states joined with them. It then only bound those who adopted it, and when thus adopted by nine states it dissolved the league and ceased to be a proposal, and became a constitution.

§ 124. The act of adopting the new constitution violated the compact of confederation between the states. Because it did not require the ratification of all the states it was in disregard of the articles of confederation, which provided that the compact could not be superseded without the unanimous consent of the parties to that instrument, and North Carolina and Rhode Island not ratifying it (the latter not taking any legal steps in recognition of it),

78 Duer's Outlines, sec. 859.

79 Fed., No. 40.

80 Baldwin's Views, 11 Pet. (App.) 19.

had the legal right to insist that the act was revolutionary, and so it was (81).

§ 125. The autonomy of the states was preserved. But the ratification did not dissolve the states. The citizens of the ratifying states became citizens also of the new state called under the old name-the United States (82), -and then, and then only, were the people created one people and one nation (83). The old confederacy was a league between states and depended upon state action, having no means of enforcing individual obedience. The constitution of the United States creates direct relations between the United States government and individuals (84). Webster, in his reply to Calhoun, says: "The constitution utters its behests in the name and by the authority of the people, and it exacts not from states any plighted public faith to maintain it. On the contrary, it makes its own preservation depend on individual duty and individual obligations (85). The states cannot, by neglect, stop the wheels of government. The individual. oath of office of the state legislative bodies to support the constitution of the United States compels them to act at stated terms (86).

§ 126. The relation of the people, the states and minorities. It is often said that the people are sovereign,—that

81 Duer's Outlines, sec. 855; Cooley's Prin. 16; Fed. Nos. 40-43; Baldwin's Modern Political Institutions, p. 12.

82 Scott v. Sanford, 19 How. 393; White v. Hart, 13 Wall. 650.

83 Miller on Const., 83; Baldwin's Views, 11 Pet. (App.) 19.

84 White v. Hart, 13 Wall. 650; Iredell, J., in Chisholm v. Georgia,

2 Dall. 335.

86 Iredell, J., in Chisholm v. Georgia, 2 Dall. 435.

86 Ibid.; Duer's Outlines, 214. See also Ex parte Yarbrough, 110 U. S. 651.

is, the whole mass is sovereign because they created the constitution; and it is asked, Is not the creator sovereign to the creature? But the people of the old confederacy did not act en masse or as citizens of one great body politic in creating the constitution (87). Rhode Island never participated in the constitutional convention, and North Carolina did not ratify until long after nine states had ratified. Confusion about this question arises from treating different things as the same thing because they are called by the same name. The political unity was created by the constitution, consisting of eleven states and the people thereof; that is, the artificial person as we see it now, then came into being, and then, for the first time, were known citizens of the United States (88). The members of the old confederacy were states of the new nation, individuals and states. It is their universal consent to the terms of this instrument which creates the body politic called the United States.

§ 127. Republican form of government described. In England government was based on sovereignty; here it is derived from citizenship. There obedience depended upon subjection; here it depends upon consent. Submission and allegiance imply inequality; consent assumes equality. Allegiance was a badge of inferiority; citizenship is the charter of equality. In the United States there are citizens but no subjects. There is no oath of allegiance other than to support the constitution and laws (89).

87 Worcester v. Georgia, 6 Pet. 515-569; Cooley's Lectures (Ann Arbor, 1889), p. 33; Von Holst's Const. Law, 48; Fed., No. 40.

88 Miller on Const., 83; Scott v. Sanford, 19 How. 393; White v. Hart, 13 Wall. €50.

89 State ex rel. McCready v. Hunt, 2 Hill (S. C.), 1.

To the constitution of the United States the term sovereignty is unknown. Government is exercised by magistrates who perform official duties and exercise delegated powers. By destroying inequality and applying the doctrine of delegated power to all subjects and departments of government and establishing a public service without rank or jura potestas, they destroyed the idea of sovereignty (90) and established a government republican in form, to define which so exactly that nothing could be added and nothing taken away is perhaps beyond the wit of man. Republicanism requires, as asserted, that magistracy be derived from the great body of the society, not from an inconsiderable portion or from a favored class of it; and it is sufficient for such a government that the magistrates be appointed directly or indirectly by the people, and that they hold their offices for a limited period or during good behavior (91).

The form of government is not democratic. This government is not democratic in form or in substance, although the people reserve and exercise political power (92). In this republic, while all power is derived from the great body of the people, they never in a single instance actually participate as a body in the administration of government (93). Representation is the essential feature of the republic, and it is sufficient for such a government that

90 Ham. Blk. 141; Webster's Reply to Calhoun.

91 Fed., No. 43; Chisholm v. Georgia, 2 Dall. 457; State v. Johnson, 25 Miss. 745.

92 State v. Johnson, supra.

93 Jay, C. J., in Chisholm v. Georgia, 2 Dall. 452, see State v. Johnson, supra.

the people reserve and exercise political power; power must be delegated or lie dormant (94).

§ 128. Limitation of all power. The assent of each individual is coupled with the agreement of every other individual that they all and each shall be bound by the terms expressed in the constitution. By adopting the acts done in convention on their behalf and expressed in the proposal for a constitution, the people in their double capacity, as individuals and citizens of states (95), established a constitution providing for a common government over all concerning certain objects, preserving the separate state governments for other objects, each of which was to be perpetual and each supreme within the limits prescribed, and this proposal, when assented to, changed its nature from a proposal to a constitution; and this constitution is the only grant, warrant, charter or authority to which any person, whether body politic, class or individual, can refer as justifying the assertion and exercise of power. The objects were expressed in the preamble to form a more perfect union (of individuals and states), establish justice and secure liberty; and the more perfectly to do this, they declare that the constitution and laws made in pursuance of it, and all treaties made under the authority of the United States, shall be the supreme law of the land, and the judges in every state bound thereby, notwithstanding any state constitution or state laws in contravention thereof (96).

94 Gibbons v. Ogden, 9 Wheat. 1. It was at this point that the democracy of Greece was weak. 1 Kent Com. *232. See Downs v. Bidwell, 182 U. S. p. 244 at p. 279.

95 Dodge v. Woolsey, 18 How. 331. 96 Const., art. VI; 2 Hill (S. C.), 1.

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