_The Constitution not only binds nobody now, but it never did bind
anybody._ It never bound anybody, because it was never agreed to by
anybody in such a manner as to make it, on general principles of law and
reason, binding upon him.
It is a general principle of law and reason, that a _written_ instrument
binds no one until he has signed it. This principle is so inflexible a
one, that even though a man is unable to write his name, he must still
"make his mark," before he is bound by a written contract. This custom
was established ages ago, when few men could write their names; when a
clerk--that is, a man who could write--was so rare and valuable a
person, that even if he were guilty of high crimes, he was entitled to
pardon, on the ground that the public could not afford to lose his
services. Even at that time, a written contract must be signed; and men
who could not write, either "made their mark," or signed their contracts
by stamping their seals upon wax affixed to the parchment on which their
contracts were written. Hence the custom of affixing seals, that has
continued to this time.
The law holds, and reason declares, that if a written instrument is not
signed, the presumption must be that the party to be bound by it, did
not choose to sign it, or to bind himself by it. And law and reason both
give him until the last moment, in which to decide whether he will sign
it, or not. Neither law nor reason requires or expects a man to agree to
an instrument, _until it is written_; for until it is written, he cannot
know its precise legal meaning. And when it is written, and he has had
the opportunity to satisfy himself of its precise legal meaning, he is
then expected to decide, and not before, whether he will agree to it or
not. And if he does not _then_ sign it, his reason is supposed to be,
that he does not choose to enter into such a contract. The fact that the
instrument was written for him to sign, or with the hope that he would
sign it, goes for nothing.
Where would be the end of fraud and litigation, if one party could bring
into court a written instrument, without any signature, and claim to
have it enforced, upon the ground that it was written for another man to
sign? that this other man had promised to sign it? that he ought to have
signed it? that he had had the opportunity to sign it, if he would? but
that he had refused or neglected to do so? Yet that is the most that
could ever be said of the Constitution.[c] The very judges, who profess
to derive all their authority from the Constitution--from an instrument
that nobody ever signed--would spurn any other instrument, not signed,
that should be brought before them for adjudication.
Moreover, a written instrument must, in law and reason, not only be
signed, but must also be delivered to the party (or to some one for
him), in whose favor it is made, before it can bind the party making it.
The signing is of no effect, unless the instrument be also delivered.
And a party is at perfect liberty to refuse to deliver a written
instrument, after he has signed it. He is as free to refuse to deliver
it, as he is to refuse to sign it. The Constitution was not only never
signed by anybody, but it was never delivered by anybody, or to
anybody's agent or attorney. It can therefore be of no more validity as
a contract, than can any other instrument, that was never signed or
delivered.