The Convention of 1787.--Diversity of Opinion.--Luther Martin's
Account of the Three Parties.--The Question of
Representation.--Compromise effected.--Mr. Randolph's
Resolutions.--The Word "National" condemned.--Plan of Government
framed.--Difficulty with Regard to Ratification, and its
Solution.--Provision for Secession from the Union.--Views of Mr.
Gerry and Mr. Madison.--False Interpretations.--Close of the
Convention.
When the Convention met in Philadelphia, in May, 1787, it soon became
evident that the work before it would take a wider range and involve
more radical changes in the "Federal Constitution" than had at first
been contemplated. Under the Articles of Confederation the General
Government was obliged to rely upon the governments of the several
States for the execution of its enactments. Except its own officers and
employees, and in time of war the Federal army and navy, it could
exercise no control upon individual citizens. With regard to the States,
no compulsory or coercive measures could be employed to enforce its
authority, in case of opposition or indifference to its exercise. This
last was a feature of the Confederation which it was not desirable nor
possible to change, and no objection was made to it; but it was
generally admitted that some machinery should be devised to enable the
General Government to exercise its legitimate functions by means of a
mandatory authority operating directly upon the individual citizens
within the limits of its constitutional powers. The necessity for such
provision was undisputed.
Beyond the common ground of a recognition of this necessity there was a
wide diversity of opinion among the members of the Convention. Luther
Martin, a delegate from Maryland, in an account of its proceedings,
afterward given to the Legislature of that State, classifies these
differences as constituting three parties in the Convention, which he
describes as follows:
"One party, whose object and wish it was to abolish and
annihilate all State governments, and to bring forward one
General Government over this extensive continent of a
monarchical nature, under certain restrictions and limitations.
Those who openly avowed this sentiment were, it is true, but
few; yet it is equally true that there was a considerable
number, who did not openly avow it, who were, by myself and many
others of the Convention, considered as being in reality
favorers of that sentiment....
"The second party was not for the abolition of the State
governments nor for the introduction of a monarchical government
under any form; but they wished to establish such a system as
could give their own States undue power and influence in the
government over the other States.
"A third party was what I considered truly federal and
republican. This party was nearly equal in number with the other
two, and was composed of the delegates from Connecticut, New
York, New Jersey, Delaware, and in part from Maryland; also of
some individuals from other representations. This party were for
proceeding upon terms of federal equality: they were for taking
our present federal system as the basis of their proceedings,
and, as far as experience had shown that other powers were
necessary to the Federal Government, to give those powers. They
considered this the object for which they were sent by their
States, and what their States expected from them."
In his account of the second party above described, Mr. Martin refers to
those representatives of the larger States who wished to establish a
numerical basis of representation in the Congress, instead of the equal
representation of the States (whether large or small) which existed
under the Articles of Confederation. There was naturally much
dissatisfaction on the part of the greater States--Virginia,
Pennsylvania, North Carolina, and Massachusetts--whose population at
that period exceeded that of all the others combined, but which, in the
Congress, constituted less than one third of the voting strength. On the
other hand, the smaller States were tenacious of their equality in the
Union. Of the very smallest, one, as we have seen, had sent no
representatives to the Convention, and the other had instructed her
delegates, unconditionally, to insist upon the maintenance of absolute
equality in the Congress. This difference gave more trouble than any
other question that came before the Convention, and for some time
threatened to prove irreconcilable and to hinder any final agreement. It
was ultimately settled by a compromise. Provision was made for the
representation of the people of the States in one branch of the Federal
Legislature (the House of Representatives) in proportion to their
numbers; in the other branch (the Senate), for the equal representation
of the States as such. The perpetuity of this equality was furthermore
guaranteed by a stipulation that no State should ever be deprived of its
equal suffrage in the Senate without its own consent.[31] This
compromise required no sacrifice of principle on either side, and no
provision of the Constitution has in practice proved more entirely
satisfactory.
It is not necessary, and would be beyond the scope of this work, to
undertake to give a history of the proceedings of the Convention of
1787. That may be obtained from other sources. All that is requisite for
the present purpose is to notice a few particulars of special
significance or relevancy to the subject of inquiry.
Early in the session of the Convention a series of resolutions was
introduced by Mr. Edmund Randolph, of Virginia, embodying a proposed
plan of government, which were considered in committee of the whole
House, and formed the basis of a protracted discussion. The first of
these resolutions, as amended before a vote was taken, was in these
words:
"_Resolved_, That it is the opinion of this committee that a
national Government ought to be established, consisting of a
supreme legislative, executive, and judiciary."
This was followed by other resolutions--twenty-three in all, as adopted
and reported by the committee--in which the word "national" occurred
twenty-six times.
The day after the report of the committee was made, Mr. Ellsworth, of
Connecticut, moved to strike out the words "national Government" in the
resolution above quoted, and to insert the words "Government of the
United States," which he said was the proper title. "He wished also the
plan to go forth as an amendment of the Articles of Confederation."[32]
That is to say, he wished to avoid even the appearance of undertaking to
form a _new_ government, instead of reforming the old one, which was the
proper object of the Convention. This motion was agreed to without
opposition, and, as a consequence, the word "national" was stricken out
wherever it occurred, and nowhere makes its appearance in the
Constitution finally adopted. The prompt rejection, after introduction,
of this word "national," is obviously much more expressive of the intent
and purpose of the authors of the Constitution than its mere absence
from the Constitution would have been. It is a clear indication that
they did not mean to give any countenance to the idea which, "scotched,
not killed," has again reared its mischievous crest in these latter
days--that the government which they organized was a consolidated
_nationality_, instead of a confederacy of sovereign members.
Continuing their great work of revision and reorganization, the
Convention proceeded to construct the framework of a government for the
Confederacy, strictly confined to certain specified and limited powers,
but complete in all its parts, legislative, executive, and judicial, and
provided with the means for discharging all its functions without
interfering with the "sovereignty, freedom, and independence" of the
constituent States.
All this might have been done without going beyond the limits of their
commission "to revise the Articles of Confederation," and to consider
and report such "alterations and provisions" as might seem necessary to
"render the Federal Constitution adequate to the exigencies of
government and the preservation of the Union." A serious difficulty,
however, was foreseen. The thirteenth and last of the aforesaid articles
had this provision, which has already been referred to: "The Articles of
this Confederation _shall be inviolably observed by every State, and the
union shall be perpetual; nor shall any alteration, at any time
hereafter, be made in any of them_, unless such alteration be agreed to
in a Congress of the United States, and be afterward confirmed by the
Legislatures of _every State_."
It is obvious, from an examination of the records, as has already been
shown, that the original idea in calling a Convention was, that their
recommendations should take the course prescribed by this
article--first, a report to the Congress, and then, if approved by that
body, a submission to the various Legislatures for final action. There
was no reason to apprehend the non-concurrence of Congress, in which a
mere majority would determine the question; but the consent of the
Legislatures of "_every State_" was requisite in order to final
ratification, and there was serious reason to fear that this consent
could not be obtained. Rhode Island, as we have seen, had declined to
send any representatives to the Convention; of the three delegates from
New York, two had withdrawn; and other indications of dissatisfaction
had appeared. In case of the failure of a single Legislature to ratify,
the labors of the Convention would go for naught, under a strict
adherence to the letter of the article above cited. The danger of a
total frustration of their efforts was imminent.
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 Constitution, that
the ratification of _nine_ States should be sufficient for its
establishment among themselves. In order to validate this provision, it
was necessary to refer it to authority higher than that of Congress and
the State Legislatures--that is, to the People of the States, assembled,
by their representatives, in convention. Hence it was provided, by the
seventh and last article of the new Constitution, 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, assembled in mass. 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 Constitution, 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. 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 Constitution.
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
Massachusetts--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
Constitution, 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 God, which declares that the safety and
happiness of society are the objects at which all political institutions
aim, and to which all such institutions 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 pronounce 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 incumbent on us all to veil the ideas
which this paragraph exhibits._ The 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 Constitution, 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
Constitution"--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 Constitution, of that astonishing
fiction, which has been put forward by some distinguished writers of
later date, that the Constitution 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 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 assertion, 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 Constitution, "adequate to the
exigencies of government and the preservation of the Union"; that the
terms "Union," "United States," "Federal Constitution;" and
"Constitution 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 constitute 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 Constitution, 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 Washington, President, and deputy
from Virginia," and the other delegates who signed it.]
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 Constitution, 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 Constitution, 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: Constitution, Article V.]
[Footnote 32: 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 repetition 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 title, "Is Davis a Traitor? or, Was Secession a
Constitutional Right?"]
[Footnote 33: No. xliii.]
[Footnote 34: See "Republic of Republics," Part II, chapters xiii and
xiv.]