Verbal Cavils and Criticisms.--"Compact," "Confederacy,"
"Accession," etc.--The "New Vocabulary."--The Federal
Constitution a Compact, and the States acceded to it.--Evidence
of the Constitution itself and of Contemporary Records.
I have habitually spoken of the Federal Constitution as a compact, and
of the parties to it as sovereign States. These terms should not, and in
earlier times would not, have required explanation or vindication. But
they have been called in question by the modern school of consolidation.
These gentlemen admit that the Government under the Articles of
Confederation was a compact. Mr. Webster, in his rejoinder to Mr. Hayne,
on the 27th of January, 1830, said:
"When the gentleman says the Constitution is a compact between
the States, he uses language exactly applicable to the old
Confederation. He speaks as if he were in Congress before 1789.
He describes fully that old state of things then existing. The
Confederation was, in strictness, a compact; the States, as
States, were parties to it. We had no other General Government.
But that was found insufficient and inadequate to the public
exigencies. The people were not satisfied with it, and undertook
to establish a better. They undertook to form a General
Government, which should stand on a new basis--not a
confederacy, not a league, not a compact between States, but a
Constitution."[52]
Again, in his discussion with Mr. Calhoun, three years afterward, he
vehemently reiterates the same denial. Of the Constitution, he says:
"Does it call itself a compact? Certainly not. It uses the word
'compact' but once, and that when it declares that the States shall
enter into no compact.[53] Does it call itself a league, a confederacy,
a subsisting treaty between the States? Certainly not. There is not a
particle of such language in all its pages."[54]
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 Constitution is not a compact,
because it is not "so nominated in the bond." As well as I can
recollect, there is no passage in the "Iliad" or the "Æneid" 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 titles will hardly be disputed--
notwithstanding the verbal criticism on the Constitution just quoted.
The distinction attempted to be drawn between the language proper to a
confederation and that belonging to a constitution, 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
Constitution," "Constitution of the Federal Government," and the like,
were used--not merely in colloquial, informal speech, but in public
proceedings and official documents--with reference to the Articles of
Confederation, as freely as they have since been employed under the
present Constitution. The former Union was--as Mr. Webster expressly
admits--as nobody 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 Constitution, 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
constituent 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 Constitution 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 Constitution 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 Constitution, 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 associations, implies coming into a
league, treaty, or confederacy, by one hitherto a stranger to
it; and secession implies departing from such league or
confederacy. The people of the United States have used no such
form of expression in establishing 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 constitutional language for a new vocabulary, and to
substitute, in the place of plain, historical facts, a series of
assumptions. This is the reason why it is necessary to give new
names to things; to speak of the Constitution, not as a
constitution, but as a compact; and of the ratifications by the
people, not as ratifications, but as acts of accession."[56]
In these and similar passages, Mr. Webster virtually concedes that, if
the Constitution _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 Constitution and their associates 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 Massachusetts, 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 pronounced 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 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 Constitution, 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 Constitution a "compact." (See especially Nos. IX. and LXXXV.)
General Washington--who was not only the first President under the new
Constitution, 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 Constitution 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 Constitution in Virginia would do, "if
nine other States should _accede_ to the Constitution."
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" 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 Constitution 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 Massachusetts, the State which he represented in the
Senate, and of New Hampshire, the State of his nativity.
The ratification of Massachusetts is expressed in the following terms:
"COMMONWEALTH OF MASSACHUSETTS.
"The Convention, having impartially discussed and fully
considered a Constitution 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, passed 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 assenting to and ratifying a new Constitution, 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 Massachusetts, assent to and
ratify the said Constitution for the United States of America."
The ratification of New Hampshire 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 Hampshire and a Senator from Massachusetts, declared it was not; and
not only 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 Constitution--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 Constitution 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 Constitution which stamps its character as a compact
too plainly for cavil or question. The Constitution, 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: Gales and Seaton's "Register of Congressional Debates,"
vol. vi, Part I, p. 93.]
[Footnote 53: The words "with another State or with a foreign power"
should have been added to make this statement accurate.]
[Footnote 54: "Congressional Debates," vol. ix, Part I, p. 563.]
[Footnote 55: "Congressional Debates," vol. ix, Part I, p. 566.]
[Footnote 56: Ibid., pp. 557, 558.]
[Footnote 57: "Madison Papers," pp. 1081, 1082.]
[Footnote 58: Ibid., p. 1184.]
[Footnote 59: Luther Martin's "Genuine Information," in Wilbur Curtiss's
"Secret Proceedings and Debates of the Convention," p. 29.]