might lead the majority in the several State legislatures, if the question of ratifying the Constitution were left to those bodies, to reject it, even in States, whose citizens would be disposed to ratify it. Hence the Convention wisely determined to disregard the thirteenth article requiring a ratification in that manner, and to commit the fate of the instrument to Conventions specially chosen by the people for the very purpose of passing upon it.

But, while the Convention resolved to disobey the letter of the Constitution in allowing the system to be established on the ratification of nine States, and in substituting Conventions for legislatures as the ratifying bodies, they departed from the requirements of the Constitution no farther than was deemed necessary. The principle of unanimity was preserved by requiring the consent of each State which should be comprised in the new system to be given to its provisions; that is, no State was to be compelled to adopt the proposed Constitution, or, without adoption by its own citizens, to be governed by it. So, also, the old principle of independent State action was made to coexist and harmonize with the new principle of founding the political structure upon the basis of the people of the United States, by requiring the vote upon its establishment to be taken in the several States, but by the people thereof in their elementary character as citizens, and not as forming the governments of the States respectively. This, indeed, as already stated, was the only way in which a vote could have been taken at all, under any effective safeguards to secure its authenticity and purity. Except in the States, there was a total lack of the machinery necessary to inaugurate Conventions to adopt or reject the proposed Constitution.

§ 38. But, even if it were admitted that the present Constitution was ratified by the States, in the manner and in the capacity claimed by the politicians of the States Rights School, it would not follow that the separate communities brought thereby into a closer union did not, by the federal act, become a nation; nor, if they be conceded to have been sovereign societies under the Confederation, that they did not merge, each its separate sovereignty, in that of the Union. We have seen that two or more sovereign societies may become united into one, and that upon such union sovereignty becomes inherent in the resultant so

ciety. Whether it does so or not, however, depends upon the closeness of the union, to be ascertained from all the facts of the case, among the most important of which is doubtless the intent of the uniting peoples, as determined by the phraseology of the instrument embodying the conditions of the union. If, by the true construction of that instrument, the States, theretofore supposed to be sovereign, were intentionally shorn of their sovereignty and subordinated to a new organization, by its terms declared to be supreme, and especially if, by it, there were recognized as existing in the United States, whether then for the first time or not, matters not, a power competent to control, alter, or annul both the States and the general government, thus declared to be supreme, it could not be denied, that such power, the people of the United States, was the sovereign power of the Union, from the time such instrument was ratified. Indeed, if it be assumed, that the purpose of the people in forming the present Constitution was to merge in the single sovereignty of the Union the sovereignties of thirteen independent sovereign States, no mode of ratifying the instrument was possible, but that by the action of the States themselves, substantially like that which actually took place.

§ 39. One of the most valuable indications from which to determine whether or not we became a nation by the establishment of either of our two Constitutions, is derived from the expressed opinions of contemporary statesmen, friends as well as enemies of the systems thereby founded.

Respecting the effect of the first Federal Constitution, called the Articles of Confederation, some doubt has been not unnaturally entertained. It did not make of us a nation, for that is what no Constitution could do. Nor did it, in explicit terms, declare us to have become, or to be, a nation. And, yet, in my judgment, at the time the Confederation was formed, we were in fact a nation, though the process of fusion had not been completed. The insane passion for state autonomy, rife during the early years of the Revolutionary war, had not subsided. Because the war had proved successful, notwithstanding the imperfection of the Union, men gave to the crazy fabric, under which it had been carried on, more credit for that result than it deserved. It took six years of peace, crowded with inter-state bickerings, and with constant exhibitions of imbecility by a

government, which, whatever else it could do, could not govern, to teach our fathers, that, if their union still subsisted, it was in spite of their government, and that if they did not desire, within the borders of each State, to see a repetition of the rebellion kindled by Shay in Massachusetts, ending, perhaps, in a general civil war, they must substitute for the rotten structure of the Confederation a Constitution which should confirm and not undermine and break up their actual union. Under these impulses, the Constitution was framed. But the circumstances I have mentioned led to the formation of two parties, one strenuous for its adoption and the other bent, by any and all means, upon defeating it. The charges and admissions of the two disputants discussing its provisions, furnish valuable indications as to the nature of the Union and of its connecting bond, as viewed by men then living. The citations I shall make will be such as bear especially on the present Constitution.

§ 40. In the Convention which framed the Federal Constitution, the opposing views indicated were brought into prominence by a question of power, early raised by the partisans of a confederate government. Mr. Randolph of Virginia having introduced what is known as the Virginia plan, which formed the basis of the Constitution finally established, it was assailed by the friends of a Confederation on the ground that it was a scheme of national government, and that, as their credentials restricted them to the proposing of amendments to the system then in force, it was beyond their powers to form such a government. To the answer made to this objection, that the government then in force, however improved and strengthened, would be, as it had been, utterly insufficient to secure the declared objects thereof, it was replied, that that might be true, but that if so, it furnished a reason rather for adjourning and seeking further powers than for usurping such as were confessedly not vested in them.1 The

1 The first resolution of Mr. Randolph was as follows:- "Resolved, That a union of the States, merely federal, will not accomplish the objects proposed by the Articles of Confederation, namely, common defence, security of liberty, and general welfare." Mr. Charles Pinckney observed, that "if the Convention agreed to it, it appeared to him, that their business was at an end; for, as the powers of the house, in general, were to revise the present confederation, and to alter or amend it, as the case might require, to determine its insufficiency or incapability of amendment or improvement, must end in the dissolution of the powers."-Yates' Minutes, (1 Ell. Deb.) pp. 391, 392.

force of this argument was felt, but the Convention relieved itself from the dilemma, by recalling the fact that its duty was not to conclude but to recommend, and that where such was the fact, particularly under the circumstances of the country, they must recommend measures that promised to be adequate to the exigencies of the occasion; and that to adjourn without doing so, because they found the defects of the old system more radical than had been supposed, would be to plunge into anarchy and civil war. Mr. Randolph, as reported by Mr. Madison, said, "When the salvation of the Republic was at stake, it would be treason to our trust not to propose what we found necessary." 1 Mr. Hamilton said,"He agreed with the honorable gentleman from Virginia (Mr. Randolph) that we owed it to our country to do on this emergency whatever we should deem essential to its happiness. The States sent us here to provide for the exigencies of the Union. To rely on and propose any plan not adequate to these exigencies, merely because it was not clearly within our powers, would be to sacrifice the end to the means." 2

3

"A new gov

Mr. Madison took a similar view. He said, ernment must be made. Our all is depending on it; and if we have but a clause that the people will adopt, there is then a chance for our preservation." Mr. Mason said, “The principal objections against that" (the plan) " of Mr. Randolph, were the want of power and the want of practicability. There can be no weight in the first, as the fiat is not to be here but in the people. He thought with his colleague (Mr. Randolph) that there were, besides, certain crises in which all the ordinary cautions yielded to public necessity. He gave as an example the eventual treaty with Great Britain, in forming which the commissioners of the United States had wholly disregarded the improvident shackles of Congress; had given to their country an honorable and happy peace, and instead of being censured for the transgression of their powers, had raised to themselves a monument more durable than brass." 4 Mr. C. C. Pinckney "thought the Convention authorized to go any length in recom

mending, which they found necessary to remedy the evils which produced this Convention." 1

§ 41. From these extracts two things are evident, — first, that a change from the Confederation was deemed by the Convention absolutely necessary for the preservation of the States, for that body acquiesced in the reasonings contained in them and acted upon them; and, secondly, that the national plan of Mr. Randolph, or some approach to it, was what was demanded by the exigencies of the Union.

§ 42. Thus it was that the new Constitution was viewed and characterized in the Federal Convention. Another indication may be drawn from the arguments used by its enemies in the several State Conventions, called to pass upon it. To those State conventions the Constitution was submitted as a project of a complete system, to take the place and supply the deficiencies

1 Ell. Deb., Vol. V. p. 197. See also Yates' Minutes, in Vol. I. Ell. Deb. pp. 414, 415, 417, 418, 428, 492-5.

2 How urgent the necessity for a government of large powers was thought to be, may be inferred from the intimations, several times thrown out during and after the Convention, that it might become necessary to compel a union under the proposed Constitution, if not accepted voluntarily. Thus Gouverneur Morris said in the Convention:- "This country must be united. If persuasion does not unite it the sword will. He begged this consideration might have its due weight." (Ell. Deb., Vol. V. p. 276.) Madison, in a letter to Washington, written while the question of adopting the Constitution was pending in New York, said: :- "There is at present a very strong probability that nine States at least will pretty speedily concur in establishing it" (the Constitution). "What will become of the tardy remainder? They must be either left, as outcasts from the society, to shift for themselves, or be compelled to come in, or come in of themselves when they will be allowed no credit for it." Id. p. 568. Two days afterwards, October 30, 1787, Gouverneur Morris, writing also to Washington of the prospect of adopting the Constitution in New York, and of the condition of things in case she were to reject it, said: -"Jersey is so near unanimity in her favorable opinion that we may count with certainty on something more than votes should the state of affairs hereafter require the application of more pointed arguments. New York, hemmed in between the warm friends of the Constitution, will not easily, unless supported by powerful States, make any important struggle, even though her citizens were unanimous, which is by no means the case. Parties there are nearly balanced. (Ell. Deb., Vol. I. p. 505.) In the Massachusetts Convention, Colonel Thompson spoke of force as contemplated, after nine States should have adopted the Constitution, to compel the remaining four to come in. He said: "Suppose nine States adopt this Constitution, who shall touch the other four? Some cry out, Force them. I say, Draw them."- Ell. Deb., Vol. II. p. 61.