Volume I Part 7 (2/2)
In this emergency the Convention took the responsibility of transcending the limits of their instructions, and recommending a procedure which was in direct contravention of the letter of the Articles of Confederation. This was the introduction of a provision into the new Const.i.tution, that the ratification of nine States should be sufficient for its establishment among themselves. In order to validate this provision, it was necessary to [pg 99] refer it to authority higher than that of Congress and the State Legislatures-that is, to the People of the States, a.s.sembled, by their representatives, in convention. Hence it was provided, by the seventh and last article of the new Const.i.tution, that ”the ratification of the Conventions of nine States” should suffice for its establishment ”between the States so ratifying the same.”
There was another reason, of a more general and perhaps more controlling character, for this reference to conventions for ratification, even if entire unanimity of the State Legislatures could have been expected. Under the American theory of republican government, conventions of the people, duly elected and accredited as such, are invested with the plenary power inherent in the people of an organized and independent community, a.s.sembled in ma.s.s. In other words, they represent and exercise what is properly the sovereignty of the people. State Legislatures, with restricted powers, do not possess or represent sovereignty. Still less does the Congress of a union or confederacy of States, which is by two degrees removed from the seat of sovereignty. We sometimes read or hear of ”delegated sovereignty,” ”divided sovereignty,” with other loose expressions of the same sort; but no such thing as a division or delegation of sovereignty is possible.
In order, therefore, to supersede the restraining article above cited and to give the highest validity to the compact for the delegation of important powers and functions of government to a common agent, an authority above that of the State Legislatures was necessary. Mr. Madison, in the ”Federalist,”33 says: ”It has been heretofore noted among the defects of the Confederation, that in many of the States it had received no higher sanction than a mere legislative ratification.” This objection would of course have applied with greater force to the proposed Const.i.tution, which provided for additional grants of power from the States, and the conferring of larger and more varied powers upon a General Government, which was to act upon individuals instead of States, if the question of its confirmation had been submitted merely to the several State Legislatures. [pg 100] Hence the obvious propriety of referring it to the respective people of the States in their sovereign capacity, as provided in the final article of the Const.i.tution.
In this article provision was deliberately made for the secession (if necessary) of a part of the States from a union which, when formed, had been declared ”perpetual,” and its terms and articles to be ”inviolably observed by every State.”
Opposition was made to the provision on this very ground-that it was virtually a dissolution of the Union, and that it would furnish a precedent for future secessions. Mr. Gerry, a distinguished member from Ma.s.sachusetts-afterward Vice-President of the United States-said, ”If nine out of thirteen (States) can dissolve the compact, six out of nine will be just as able to dissolve the future one hereafter.”
Mr. Madison, who was one of the leading members of the Convention, advocating afterward, in the ”Federalist,” the adoption of the new Const.i.tution, asks the question, ”On what principle the Confederation, which stands in the solemn form of a compact among the States, can be superseded without the unanimous consent of the parties to it?” He answers this question ”by recurring to the absolute necessity of the case; to the great principle of self-preservation; to the transcendent law of nature and of nature's G.o.d, which declares that the safety and happiness of society are the objects at which all political inst.i.tutions aim, and to which all such inst.i.tutions must be sacrificed.” He proceeds, however, to give other grounds of justification:
”It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach committed by either of the parties absolves the others, and authorizes them, if they please, to p.r.o.nounce the compact violated and void. Should it unhappily be necessary to appeal to these delicate truths for a justification for dispensing with the consent of particular States to a dissolution of the Federal pact, will not the complaining parties find it a difficult task to answer the multiplied and important infractions with which they may be confronted? The time has been when it was inc.u.mbent on us all to veil the ideas which this paragraph exhibits. The [pg 101] scene is now changed, and with it the part which the same motives dictate.”
Mr. Madison's idea of the propriety of veiling any statement of the right of secession until the occasion arises for its exercise, whether right or wrong in itself, is eminently suggestive as explanatory of the caution exhibited by other statesmen of that period, as well as himself, with regard to that ”delicate truth.”
The only possible alternative to the view here taken of the seventh article of the Const.i.tution, as a provision for the secession of any nine States, which might think proper to avail themselves of it, from union with such as should refuse to do so, and the formation of an amended or ”more perfect union” with one another, is to regard it as a provision for the continuance of the old Union, or Confederation, under altered conditions, by the majority which should accede to them, with a recognition of the right of the recusant minority to withdraw, secede, or stand aloof. The idea of compelling any State or States to enter into or to continue in union with the others by coercion, is as absolutely excluded under the one supposition as under the other-with reference to one State or a minority of States, as well as with regard to a majority. The article declares that ”the ratification of the Conventions of nine States shall be sufficient for the establishment of this Const.i.tution”-not between all, but-”between the States so ratifying the same.” It is submitted whether a fuller justification of this right of the nine States to form a new Government is not found in the fact of the sovereignty in each of them, making them ”a law unto themselves,” and therefore the final judge of what the necessities of each community demand.
Here-although, perhaps, in advance of its proper place in the argument-the attention of the reader may be directed to the refutation, afforded by this article of the Const.i.tution, of that astonis.h.i.+ng fiction, which has been put forward by some distinguished writers of later date, that the Const.i.tution was established by the people of the United States ”in the aggregate.” If such had been the case, the will of a majority, duly ascertained and expressed, would have been binding upon the [pg 102] minority. No such idea existed in its formation. It was not even established by the States in the aggregate, nor was it proposed that it should be. It was submitted for the acceptance of each separately, the time and place at their own option, so that the dates of ratification did extend from December 7, 1787, to May 29, 1790. The long period required for these ratifications makes manifest the absurdity of the a.s.sertion, that it was a decision by the votes of one people, or one community, in which a majority of the votes cast determined the result.
We have seen that the delegates to the Convention of 1787 were chosen by the several States, as States-it is hardly necessary to add that they voted in the Convention, as in the Federal Congress, by States-each State casting one vote. We have seen, also, that they were sent for the ”sole and express purpose” of revising the Articles of Confederation and devising means for rendering the Federal Const.i.tution, ”adequate to the exigencies of government and the preservation of the Union”; that the terms ”Union,” ”United States,” ”Federal Const.i.tution;” and ”Const.i.tution of the Federal Government,” were applied to the old Confederation in precisely the same sense in which they are used under the new; that the proposition to const.i.tute a ”national” Government was distinctly rejected by the Convention; that the right of any State, or States, to withdraw from union with the others was practically exemplified, and that the idea of coercion of a State, or compulsory measures, was distinctly excluded under any construction that can be put upon the action of the Convention.
To the original copy of the Const.i.tution, as set forth by its framers for the consideration and final action of the people of the States, was attached the following words:
”Done in Convention, by the unanimous consent of the States present, the seventeenth day of September, in the year of our Lord one thousand seven hundred and eighty-seven, and of the Independence of the United States of America, the twelfth. In witness whereof, we have hereunto subscribed our names.”
[Followed by the signatures of ”George Was.h.i.+ngton, President, and deputy from Virginia,” and the other delegates who signed it.]
[pg 103]
This attachment to the instrument-a mere attestation of its authenticity, and of the fact that it had the unanimous consent of all the States then present by their deputies-not of all the deputies, for some of them refused to sign it-has been strangely construed by some commentators as if it were a part of the Const.i.tution, and implied that it was ”done,” in the sense of completion of the work.34
But the work was not done when the Convention closed its labors and adjourned. It was scarcely begun. There was no validity or binding force whatever in what had been already ”done.” It was still to be submitted to the States for approval or rejection. Even if a majority of eight out of thirteen States had ratified it, the refusal of the ninth would have rendered it null and void. Mr. Madison, who was one of the most distinguished of its authors and signers, writing after it was completed and signed, but before it was ratified, said: ”It is time now to recollect that the powers [of the Convention] were merely advisory and recommendatory; that they were so meant by the States, and so understood by the Convention; and that the latter have accordingly planned and proposed a Const.i.tution, which is to be of no more consequence than the paper on which it is written, unless it be stamped with the approbation of those to whom it is addressed.”-(”Federalist,” No. XL.)
The mode and terms in which this approval was expressed will be considered in the next chapter.
Footnote 31: (return) Const.i.tution, Article V.
Footnote 32: (return) See Elliott's ”Debates,” vol. v, p. 214. This reference is taken from ”The Republic of Republics,” Part III, chapter vii, p. 217. This learned, exhaustive, and admirable work, which contains a wealth of historical and political learning, will be freely used, by kind consent of the author, without the obligation of a repet.i.tion of special acknowledgment in every case. A like liberty will be taken with the late Dr. Bledsoe's masterly treatise on the right of secession, published in 1866, under the t.i.tle, ”Is Davis a Traitor? or, Was Secession a Const.i.tutional Right?”
Footnote 33: (return) No. xliii.
Footnote 34: (return) See ”Republic of Republics,” Part II, chapters xiii and xiv.
CHAPTER III.
Ratification of the Const.i.tution by the States.-Organization of the New Government.-Accession of North Carolina and Rhode Island.-Correspondence between General Was.h.i.+ngton and the Governor of Rhode Island.
The amended system of union, or confederation (the terms are employed indiscriminately and interchangeably by the statesmen of that period), devised by the Convention of 1787, and [pg 104] embodied, as we have seen, in the Const.i.tution which they framed and have set forth, was now to be considered and acted on by the people of the several States. This they did in the highest and most majestic form in which the sanction of organized communities could be given or withheld-not through amba.s.sadors, or Legislatures, or deputies with limited powers, but through conventions of delegates chosen expressly for the purpose and clothed with the plenary authority of sovereign people. The action of these conventions was deliberate, cautious, and careful. There was much debate, and no little opposition to be conciliated. Eleven States, however, ratified and adopted the new Const.i.tution within the twelve months immediately following its submission to them. Two of them positively rejected it, and, although they afterward acceded to it, remained outside of the Union in the exercise of their sovereign right, which n.o.body then denied-North Carolina for nine months, Rhode Island for nearly fifteen, after the new Government was organized and went into operation. In several of the other States the ratification was effected only by small majorities.
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