Chancely v. Bailey , 37 Ga. 532 ( 1868 )

Wabkeb, C. J.

This was an action brought by the plaintiff against the. defendants upon a note, or obligation, whereby, the defendants promised, one day after date, to pay the plaintiff twenty-five hundred dollars, as a substitute for one of the defendants in the Confederate army, for the term of three years, or during the war now going on between the Confederate States and the United States of America, dated 31st January, 1863. Upon the trial of the case, the Court below decided that the undertaking of the defendants was illegal and void, and nonsuited the plaintiff. This decision of the Court below, is now assigned for error here.

The argument .of the counsel for the plaintiff in error, is based mainly upon the ground that the State of Georgia had the lawful right to secede from the Union in 1861, and having done so, it was lawful for her people to form a new government, and to make war upon the Government of the United States, and, therefore, the consideration for which the note in question was given, was a lawful and valid consideration. This is & judicial, and not a political, question, depending for its solution upon the legal right of the State to secede from the American Union, and then to make war upon the Government of the United States. This Court has nothing to do with the maintainance of mere abstract political theories. Did the State of Georgia have the legal right to secede from the American Union, according to a fair legal interpretation of the Constitution of the United States, to which she was one of the original parties ? The first, and only Union formed by the sovereign independent States of America, was formed on the 9th day of July, 1778, under the name and style of “ The United States of America,” by articles of confederation and perpetual Union between the States. This Union, so formed, was declared to be, by the 13th article of the confederation of the United States, perpetual. In pursuance of a resolution adopted by the continental Congress, on the 21st February, 1787, a Convention was called of the several States, to 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 government, and the preservation of the Union.” The object of calling the Convention, it. will be perceived, was not to form a, new Union, but for the preservation of the Union which had been already formed, and declared to be perpetual. The several States composing “ The United States of America” assembled in convention at Philadelphia, and on the ’ 17th day of September,T787, adopted the Constitution of the United States, as the fundamental law of the government, which was'subsequently ratified by the people of each State, separately, in their sovereign capacity as States, and thus became the supreme law of the land, in accordance with the terms and provisions thereof. We have already seen that the Union formed between' the United States of America, in 1778, was to be & perpetudlUmon. . The people of each State, therefore, acting in their sovereign capacity, declare, in the most solemn form, in the preamble to the Constitution, that “We the people of the United States, in order to form a more perfect Union, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution, for the United States of America.” The evidence would seem to be incon tro Avertible that the Union of the States, under the Constitution, was intended by the framers thereof, and the several States ratifying it, to be perpetual. • The object is expressly declared to be, on the face of the instrument, to form a more perfect Union than that which already existed, and that Union, as AAre have seen, Avas declared to be perpetual. The object and intention of the framers of the Constitution was to revise the articles of confederation, by which the first Union was formed, that it might remain indissoluble forever, for the benefit of themselves and their posterity. The Constitution itself, as well as the declared object of its adoption, expressly negatives the legal right of separate State se.session.

But it is said some of the States, before, and at the time of ratifying the Constitution, declared that the right of secession was reserved to the State. Be that as it may, the reply to that argument is, that no such reservation was incorporated into the Constitution, no terms of that or like character, are to be found in the instrument which they solemnly signed and ratified. All that may have been said, declared or resolved by the States as to the extent to which they intended to be bound, or as to the rights reserved, unless incorporated into the instrument which they signed and ratified, cannot now be considered in the legal construction of the Constitution. That instrument must be interpreted in accordance with the terms and- stipulations contained therein. If the States did not intend to be bound by the Constitution as it is, then they ought not to have signed and ratified it; but having done so, they are legally bound by its terms and stipulations.

Another argument advanced in favor of separate State secession is, that the Constitution was formed and ratified by sovereign, independent States; that that being so, each State has the legal right to judge for herself when the compact has been broken, and to resume the exercise of her inherent sovereignty when, in her judgment, she thinks proper to do so; that between sovereign, independent States there is no common arbiter to judge. To the common understanding of mankind, it is extremely difficult to perceive why a sovereign, independent State should not be bound by her voluntary engagements in the' same manner as individuals, and be required to perform them. . Vattel, in speaking of the sovereignty of States, (an authority with which the framers of the Constitution were obviously familiar,) declares that “several sovereign and independent States may unite themselves ’together by a perpetual confederacy, without ceasing to be each indvidually a perfect State. They will, together, constitute a Federal Republic; their joint deliberations will not impair the sovereignty of each member, though they may, in certain respects, put some restraint on the exercise of it, in virtue of voluntary engagements. A person does not cease to be free and independent when he is obliged to fulfill engagements which he has voluntarily contracted.” Vattel, page 3, chapter 1st, section 9. Concluding, then, that the several States were sovereign and independent at the time of the adoption of the Eederal Constitution, they were able and willing to bind themselves together in a perpetual Union, for the purpose of establishing a government, and voluntarily entered into a solemnly executed compact for that purpose, and the Constitution is the legal evidence of that executed compact. Whatever powers, therefore, these sovereign, independent States vohmtarily granted to the Eederal government which they organized and created — whatever restraints they voluntarily imposed upon themselves as to the exercise of their respective attributes of sovereignty, as manifested by the Constitution— they are irrevocably bound thereby; for, in the language of Mr. Justice Story, in Martin vs. Hunter’s lessee, (1 Wheaton’s R., 304,) “ the Constitution was not intended to provide merely for the exigencies of a few years, but was to endure through a long lapse of ages, the events of which were locked up in the inscrutable purposes of Providence.” An executed compact differs in nothing from a grant. 2 Bl. Com., 443. A grant, in its own nature, amounts to an extinguishment of the right of the grantor, and implies a contract not to reassert that right a party is, therefore,. always estopped by his own grant, although that party be a sovereign State. Fletcher vs. Peck, 6 Cranch’s R., 308.

But if we concede, ex gratia, that one State has the legal right, by virtue of her inherent sovereignty, to judge for herself that the executed compact into which she voluntarily entered, has been broken, and adopts her own mode and means of redress, still, it must also be conceded that every other State in the Union has precisely the same right; by virtue of her inherent sovereignty, to judge for herself, that the executed compact has not been brohen, and the result would be a resort to force to decide that question, which would necessarily defeat the declared object and intention of the people of the respective States in the formation of the government of the United States. The framers of the Constitution, however, (with that consummate wisdom and practical statesmanship which so eminently qualified them for the work' which they performed,) have made ample provision in the Constitution for the arbitrament of all such controversies and disputes. The States themselves, by their own. voluntarily executed compact, created the Supreme Court of the United States and declared that it should be the peaceful arbiter to settle all controversies arising between the respective States; the States, by their solemn, executed compact, voluntarily renounced the right to judge for themselves as between each other, and the decision of their own chosen arbitrator, upon a proper case being made, is binding upon them. The argument, therefore, that there is no common judge to settle and determine controversies between sovereign, independent States, and that they have the right to judge for themselves, has no legal foundation or support, when áttempted to be made applicable to the States of the American Union, for the reason that they, by their own voluntary engagements, have expressly stipulated, in the Constitution, that all controversies between them shall be determined by a tribunal of their own creation and selection, which excludes all pretension that they may lawfully do it for themselves.

This view of the question is in strict accordance with the general principles of the law by which civil society is governed. Vattel states the rule to be, “ that if any disputes arise in a State respecting the fundamental laws,- the public administration, or the rights of the different powers of which it is composed, it belongs to the nation alone to judge and determine them, conformably to its political constitution.” Vattel 12, section 36. Conformably to the political Constitution of the United States, the Supreme Court is made the chosen arbiter, to judge and determine the disputes and controversies that may arise between the respective States, of which the 'Government of the United States is composed, and not each State in her individual capacity. This is no impeachment of the sovereignty of the States, but is in strict accordance with their own voluntary executed compact, as expressly declared in the Constitution, in order to perfect and promote the practical operations of that government which they created and established for the benefit of themselves and- their posterity. The ultimate political sovereignty of the government created by the Federal Constitution, resides in the United States of America. That government was not formed by the people of the American Union, nor does it purport, on the face of the 'Constitution, to have been so formed, but on the contrary, it purports to have been formed by, “ we, the people of the United States,” and not by “ we, the people of the American Union.” The Constitution was formed, and the Federal Government created by the people of the respective States, acting in their sovereign capacity as distinct and separate political organizations. When the Constitution was adopted and ratified by the people of the respective States, in their sovereign capacity as States, they did not empty themselves of any portion of their political sovereignty, or make any specific division of it. Sovereignty is indivisible and wnalienable. Vattel 27, 31, sections 65 and 69. They formed a government, however, by their solemn executed compact, adequate to the wants and necessities of the people of the respective States, provided all the necessary political and judicial machinery, so as to make it a practical working government, to endure throughout all time. The several States, by their voluntary executed compact, expressly stipulated that the Federal Government which they created, its officers and agents, should exercise certain enumerated attributes of sovereignty in their joint names, and solemnly stipulated that they would not, either expressly.or by necessary implication. The powers granted to the Federal Government, by the States, as expressed in the Constitution, were intended to be a consolidation of power in that government, to that extent, intended to vest in that government, the supreme, irresistible, absolute, uncontrolled authority over the people of the respective States, so as to act efficiently and directly upon them as individuals, and as a unit in the execution of those granted powers. It must be conceded, therefore, that the Federal Government, to the extent of the powers granted to it by the States, in the Constitution, is, in the language of Washington, a consolidated government, and that the primary object was a consolidation of the Union, at least to that extent. See Washington’s letter transmitting the Federal Constitution to the Continental Congress. The powers not granted to the government of the United States by the Constitution, nor prohibited by it to the States, are expressly reserved to the States, or to the people thereof, and a State, in the language of the Supreme Court, in the case of the city of New York vs. Miller, (11th Peter’s Rep., 139,)' “ has the same undeniable and unlimited jurisdiction over all persons and things within its territorial jurisdiction as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States.” Thus it is apparent, that whatever powers were granted by the voluntary executed compact of t-he sovereign States to the Federal Government, to be exercised in their joint names for the preservation and consolidation of the Union, as therein expressed, binding upon, them to that extent and no more. “In England, the sovereign power, quoad hoc, is vested in the' person of the King. Whatever contracts, therefore, he engages in, no other person in the kingdom can legally resist or annul.” 1st Bl. Com., 257. The sovereign power of the State of Georgia., at the time of the adoption and ratification of the Federal Constitution, was vested in the people of the State, as a distinct and separate political organization. Whatever, therefore, they, in their sovereign capacity, voluntarily bound themselves to do or not to do, by the terms and stipulations contained in the Constitution of the United States, they could not afterwards legally delay, resist, or annul, by separate State secession from the Union; they were inviolably bound in law, by their solemn executed compact; for we have already shown that their declared object was to form a more perfect Union of the States, which Union was then already declared to be perpetual.

We have previously stated that the ultimate political sovereignty of the Federal Government resides in the United States of America. The truth of this proposition may be illustrated by reference to the contemporaneous history of that Government from the day of its organization up to the present time. “Sovereignty (says Vattel) is that public authority which commands in civil society, and orders and directs .what each citizen is to perform to obtain the end of its institution.” Vattel, page 12, section 34. All the laws of the Federal Congress are enacted in the name of the United, States, where the political sovereignty resides. All orders of the Federal Government are issued in the name of the United States, where the political sovereignty of the government resides. Treason is an offence committed against the political sovereignty of the government. The Federal Constitution declares that treason “ shall consist only in levying war against the United States, or in adhering to their enemies, giving them aid and comfort.” The process and mandates of the Federal Courts issue in the name of the United States, where the political sovereignty resides. The flag of the Union is an emblem of sovereignty, but it was not designed with one star, as representing the sovereignty of the Federal Geovrnment, or as representing the sovereignty of the entire people of the American Union, but it was designed with thirteen stars, thereby, intending to represent the sovereignty of the thirteen United States, and wherever that flag floats, on the land or the sea, it is an emblem of the sovereignty of the United States of America, where the ultimate political sovereignty of the Federal Government resides. By the 6th article of the Constitution of the United States, it is declared that “this Constitution, 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, anything in the Constitution or laws of any State to the contrary notwithstanding.” Why is the Constitution, and laws of the United States made in pursuance thereof, the supreme law of the land ? Because the several States of the Union, acting in their sovereign capacity, by their voluntary executed compact, have declared that they shall be so, in order to form a more perfect Union, etc. Why are the citizens of Georgia bound to observe and obey the Constitution and laws of the United States, made in pursuance thereof, as the supreme law of the land ? Because the State, acting in her sovereign capacity, has commanded them to do so, in the Constitution of the United States, in order to form a more perfect Union, etc. The mandate of the States is not any the less potent or imperative because it is embodied in the Constitution of the United States. All the powers granted by the States to the Federal Government in the Constitution, are to be exercised by that government, and are made obligatory ujaon the citizens of every State, by the voluntary, executed compact of the States, acting in their sovereign capacity as such, in order, as they declared, to form a more perfect Union than that which then existed by the articles of confederation, which was declared therein to be a perpetual Union. It is an undeniable fact, that the political sovereignty of each of the States, at the time of the formation of the Constitution, resided in the people thereof, and that the Federal Government, from the time of its organization under the present Constitution, has been operated and conducted in the name of that sovereign authority, to-wit: “ The United States of America.” The several States, when they assembled in convention to form the Constitution, had two leading objects in view. First, to preserve the Union of the States. Second, to form a Federal Constitution, adequate to the exigencies of government. The result of their labors is to be found in the Constitution of the United States. The several States, by their voluntary, executed compact, created the Federal Government and granted such powers to it as in their judgment would be adequate to the exigencies of good government. The Constitution, so formed, was submitted to a convention.of delegates chosen in each State by the people thereof, was ratified by them, as separate and distinct political organizations, and thus became the supreme law of the land.

The State of Georgia, then, ever since the adoption and ratification of the Federal Constitution, has, and does now, constitute an integral part of the political sovereignty of the government of the United States of America. She became so by her own voluntary, executed, irrevocable compact, for the ■express purpose of forming a more perfect Union of the States than that which already existed; to establish justice, insure domestic tranquility, provide for the common defenc'e, promote the general welfare and secure the blessings of liberty to her people and their posterity. By no act of her people, therefore, could she lawfully reassert and resume the pouters thus granted, and thereby destroy the unity of that government of which she constituted an integral part, except by succesful revolution, which has not been accomplished. It is to be regretted that the political heresy of peacable State secession from the Union, as being practically different from revolution, should ever have found a lodgment in the minds of our people. It finds no legal support either in the Federal Constitution or in the decisions of the Supreme Court of the United States, the recognized interpreter and expounder of that instrument.

The result and logical conclusion, therefore, is that the plaintiff in error, when he made the contract sued on, to serve as a substitute in a war against the government of the United States of America, of which government the State of Georgia constituted an integral part, violated the supreme, paramount law of the land, and the contract is, therefore, null and void. Allegiance is the tie or ligament which binds the citizen to the government in return for the protection which the government affords him. The paramount allegiance of the plaintiff, as a citizen of Georgia, was due to that government which she, in her sovereign capacity, had commanded him to obey as the supreme law of thp land, and her mandate is to be found in the Constitution of the United States, which declares that that Constitution, and the laws of the United States made in pursuance thereof, shall be the supreme law of the land, anything in the Constitution or laws of any State to the contrary notwithstanding. The plaintiff contracted to engage in a war against the United States. The State of Georgia, in her sovereign capacity, has commanded him, as well as all of her citizens, in the Constitution of the United States, to observe that “ treason against tlie United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.” These mandates made to the citizens of the State, by her sovereign authority, are not any the less binding upon them because the same are embodied in the Constitution of the United States. It is the voice of their sovereign, speaking as an integral part of the sovereignty of the government of the United States, in the most authoritative and solemn form, and in the language of her own voluntary, executed compact, which all are bound to obey as the supreme law of the land, for the simple reason that the State, in her sovereign capacity, in common with the other States which formed and ratified the Federal Constitution, has commanded them to do so. It is, therefore, the judgment of the major-' ity of the Court that the judgment of the Court- below be affirmed.

Note. — Walkeu, J., concurred in the judgments in the two foregoing causes, but wrote out no opinion.