Volume I Part 11 (1/2)
The artist, who wrote under his picture the legend ”This is a horse,” made effectual provision against any such cavil as that preferred by Mr. Webster and his followers, that the Const.i.tution is not a compact, because it is not ”so nominated in the bond.” As well as I can recollect, there is no pa.s.sage in the ”Iliad” or the ”aeneid” in which either of those great works ”calls itself,” or is called by its author, an epic poem, yet this would scarcely be accepted as evidence that they are not epic poems. In an examination of Mr. Webster's remarks, I do not find that he announces them to be either a speech or an argument; yet their claim to both these t.i.tles will hardly be disputed-notwithstanding [pg 136] the verbal criticism on the Const.i.tution just quoted.
The distinction attempted to be drawn between the language proper to a confederation and that belonging to a const.i.tution, as indicating two different ideas, will not bear the test of examination and application to the case of the United States. It has been fully shown, in previous chapters, that the terms ”Union,” ”Federal Union,” ”Federal Const.i.tution,” ”Const.i.tution of the Federal Government,” and the like, were used-not merely in colloquial, informal speech, but in public proceedings and official doc.u.ments-with reference to the Articles of Confederation, as freely as they have since been employed under the present Const.i.tution. The former Union was-as Mr. Webster expressly admits-as n.o.body denies-a compact between States, yet it nowhere ”calls itself” ”a compact”; the word does not occur in it even the one time that it occurs in the present Const.i.tution, although the contracting States are in both prohibited from entering into any ”treaty, confederation, or alliance” with one another, or with any foreign power, without the consent of Congress; and the contracting or const.i.tuent parties are termed ”United States” in the one just as in the other.
Mr. Webster is particularly unfortunate in his criticisms upon what he terms the ”new vocabulary,” in which the Const.i.tution is styled a compact, and the States which ratified it are spoken of as having ”acceded” to it. In the same speech, last quoted, he says:
”This word 'accede,' not found either in the Const.i.tution itself or in the ratification of it by any one of the States, has been chosen for use here, doubtless not without a well-considered purpose. The natural converse of accession is secession; and therefore, when it is stated that the people of the States acceded to the Union, it may be more plausibly argued that they may secede from it. If, in adopting the Const.i.tution, nothing was done but acceding to a compact, nothing would seem necessary, in order to break it up, but to secede from the same compact. But the term is wholly out of place. Accession, as a word applied to political a.s.sociations, implies coming into a league, treaty, or confederacy, by one hitherto a stranger to it; and secession implies departing from such [pg 137] league or confederacy. The people of the United States have used no such form of expression in establis.h.i.+ng the present Government.”55
Repeating and reiterating in many forms what is substantially the same idea, and attributing the use of the terms which he attacks to an ulterior purpose, Mr. Webster says:
”This is the reason, sir, which makes it necessary to abandon the use of const.i.tutional language for a new vocabulary, and to subst.i.tute, in the place of plain, historical facts, a series of a.s.sumptions. This is the reason why it is necessary to give new names to things; to speak of the Const.i.tution, not as a const.i.tution, but as a compact; and of the ratifications by the people, not as ratifications, but as acts of accession.”56
In these and similar pa.s.sages, Mr. Webster virtually concedes that, if the Const.i.tution were a compact; if the Union were a confederacy; if the States had, as States, severally acceded to it-all which propositions he denies-then the sovereignty of the States and their right to secede from the Union would be deducible.
Now, it happens that these very terms-”compact,” ”confederacy,” ”accede,” and the like-were the terms in familiar use by the authors of the Const.i.tution and their a.s.sociates with reference to that instrument and its ratification. Other writers, who have examined the subject since the late war gave it an interest which it had never commanded before, have collected such an array of evidence in this behalf that it is necessary only to cite a few examples.
The following language of Mr. Gerry, of Ma.s.sachusetts, in the Convention of 1787, has already been referred to: ”If nine out of thirteen States can dissolve the compact, six out of nine will be just as able to dissolve the new one hereafter.”
Mr. Gouverneur Morris, one of the most p.r.o.nounced advocates of a strong central government, in the Convention, said: ”He came here to form a compact for the good of Americans. He was ready to do so with all the States. He hoped and believed [pg 138] they all would enter into such a compact. If they would not, he would be ready to join with any States that would. But, as the compact was to be voluntary, it is in vain for the Eastern States to insist on what the Southern States will never agree to.”57
Mr. Madison, while inclining to a strong government, said: ”In the case of a union of people under one Const.i.tution, the nature of the pact has always been understood,” etc.58
Mr. Hamilton, in the ”Federalist,” repeatedly speaks of the new government as a ”confederate republic” and a ”confederacy,” and calls the Const.i.tution a ”compact.” (See especially Nos. IX. and Lx.x.xV.)
General Was.h.i.+ngton-who was not only the first President under the new Const.i.tution, but who had presided over the Convention that drew it up-in letters written soon after the adjournment of that body to friends in various States, referred to the Const.i.tution as a compact or treaty, and repeatedly uses the terms ”accede” and ”accession,” and once the term ”secession.”
He asks what the opponents of the Const.i.tution in Virginia would do, ”if nine other States should accede to the Const.i.tution.”
Luther Martin, of Maryland, informs us that, in a committee of the General Convention of 1787, protesting against the proposed violation of the principles of the ”perpetual union” already formed under the Articles of Confederation, he made use of such language as this:
”Will you tell us we ought to trust you because you now enter into a solemn compact with us? This you have done before, and now treat with the utmost contempt. Will you now make an appeal to the Supreme Being, and call on Him to guarantee your observance of this compact? The same you have formerly done for your observance of the Articles of Confederation, which you are now violating in the most wanton manner.”59
It is needless to multiply the proofs that abound in the writings of the ”fathers” to show that Mr. Webster's ”new vocabulary” [pg 139] was the very language they familiarly used. Let two more examples suffice, from authority higher than that of any individual speaker or writer, however eminent-from authority second only, if at all inferior, to that of the text of the Const.i.tution itself-that is, from the acts or ordinances of ratification by the States. They certainly ought to have been conclusive, and should not have been unknown to Mr. Webster, for they are the language of Ma.s.sachusetts, the State which he represented in the Senate, and of New Hamps.h.i.+re, the State of his nativity.
The ratification of Ma.s.sachusetts is expressed in the following terms:
”COMMONWEALTH OF Ma.s.sACHUSETTS.
”The Convention, having impartially discussed and fully considered a Const.i.tution for the United States of America, reported to Congress by the convention of delegates from the United States of America, and submitted to us by a resolution of the General Court of the said Commonwealth, pa.s.sed the 25th day of October last past, and acknowledging with grateful hearts the goodness of the Supreme Ruler of the universe, in affording the people of the United States, in the course of his Providence, an opportunity, deliberately and peaceably, without fraud or surprise, of entering into an explicit and solemn COMPACT with each other, by a.s.senting to and ratifying a new Const.i.tution, in order to form a more perfect Union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to themselves and their posterity-do, in the name and in behalf of the people of the Commonwealth of Ma.s.sachusetts, a.s.sent to and ratify the said Const.i.tution for the United States of America.”
The ratification of New Hamps.h.i.+re is expressed in precisely the same words, save only the difference of date of the resolution of the Legislature (or ”General Court”) referred to, and also the use of the word ”State” instead of ”Commonwealth.” Both distinctly accept it as a compact of the States ”with each other”-which Mr. Webster, a son of New Hamps.h.i.+re and a Senator from Ma.s.sachusetts, declared it was not; and not only [pg 140] so, but he repudiated the very ”vocabulary” from which the words expressing the doctrine were taken.
It would not need, however, this abounding wealth of contemporaneous exposition-it does not require the employment of any particular words in the Const.i.tution-to prove that it was drawn up as a compact between sovereign States entering into a confederacy with each other, and that they ratified and acceded to it separately, severally, and independently. The very structure of the whole instrument and the facts attending its preparation and ratification would suffice. The language of the final article would have been quite enough: ”The ratification of the conventions of nine States shall be sufficient for the establishment of this Const.i.tution between the States so ratifying the same.” This is not the ”language” of a superior imposing a mandate upon subordinates. The consent of the contracting parties is necessary to its validity, and then it becomes not the acceptance and recognition of an authority ”over” them-as Mr. Motley represents-but of a compact between them. The simple word ”between” is incompatible with any other idea than that of a compact by independent parties.
If it were possible that any doubt could still exist, there is one provision in the Const.i.tution which stamps its character as a compact too plainly for cavil or question. The Const.i.tution, which had already provided for the representation of the States in both Houses of Congress, thereby bringing the matter of representation within the power of amendment, in its fifth article contains a stipulation that ”no State, without its [own] consent, shall be deprived of its equal suffrage in the Senate.” If this is not a compact between the States, the smaller States have no guarantee for the preservation of their equality of representation in the United States Senate. If the obligation of a contract does not secure it, the guarantee itself is liable to amendment, and may be swept away at the will of three fourths of the States, without wrong to any party-for, according to this theory, there is no party of the second part.
Footnote 52: (return) Gales and Seaton's ”Register of Congressional Debates,” vol. vi, Part I, p. 93.
Footnote 53: (return) The words ”with another State or with a foreign power” should have been added to make this statement accurate.
Footnote 54: (return) ”Congressional Debates,” vol. ix, Part I, p. 563.