Congress could have done under the Federal Articles. And could not Congress propose, by virtue of the last article, a change in any article whatever, and as well that relating to the equality of suffrage as any other? He made these remarks to obviate some scruples which had been expressed. He doubted much the practicability of annihilating the States; but thought that much of their power ought to be taken from them." 17

Mr. Madison said:

"Some gentlemen are afraid that the plan is not sufficiently national, while others apprehend that it is too much so. If this point of representation was once well fixed, we should come nearer to one another in sentiment. The necessity would then be discovered of circumscribing more effectually the State governments, and enlarging more effectually the bounds of the general government. Some contend that the States are sovereign, when in fact they are only political societies. The States never possessed the essential rights of sovereignty. They were always vested in Congress. Their voting as States in Congress is no evidence of their sovereignty. The State of Maryland voted by counties. Did this make the counties sovereign? The States, at present, are only great corporations, having the power of making by-laws, and these are effectual only if they are not contradictory to the general confederation.'

18

In the legislature of South Carolina, which recommended the State Convention of ratification, General Charles Cotesworth Pinckney, after quoting the Declaration of Independence, used these prophetic words :

"The separate independence and individual sovereignty of the several States were never thought of by the enlightened band of patriots

17 Madison Papers, Elliot's Debates, 2d ed., vol. V, pp. 212, 213.

18 Yates's Notes of Secret Debates, Elliot's Debates, 2d ed., vol i, p. 461. Madison's own report of this speech, which was published after his subsequent report on the Virginia Resolutions, omits most of this language. (Madison Papers, ibid., vol. v, p. 256.) Rufus King thus reports the speech :

"We are vague in our language. We speak of the sovereignty of the States. The States are not sovereign in the full extent of the term. There

is a gradation from a simple corporation for limited and specified objects, such as an incorporation of a number of mechanics, up to a full sovereignty as preserved by independent nations whose powers are not limited. The last only are truly sovereign." (Rufus King's Report of Debates in Federal Convention, June 29, 1787; Life and Correspondence, vol. i, p. 610. See also Dr. Benjamin Rush, in his Address to the People of the United States, American Museum, January, 1787.

who framed this Declaration; the several States are not even mentioned by name in any part of it, as if it was intended to impress this maxim on America, that our freedom and independence arose from our Union, and that without it we could be neither free nor independent. Let us, then, consider all attempts to weaken this Union, by maintaining that each State is separately and individually independent, as a species of political heresy, which can never benefit us, but may bring on us the most serious distress."19

About the prior sovereignty of three at least of the United States, there can be no question. The States of North Carolina and Rhode Island at first refused to ratify the Federal Constitution. The new government was organized by eleven States on March 4, 1789. North Carolina did not ratify the Constitution until November 21 of the same year, and Rhode Island not till May 29, 1790. In the meantime, these States were considered by themselves, as well as by the eleven United States, and were in fact, independent and foreign States.20 Texas declared her independence in 1835 and maintained it until 1845, when she was incorporated into the Union by an Act of Congress. Upon the other hand, it is hard to see how the new States, carved out of the national territory which was acquired by conquest, treaty, or cession from the other States, were ever sovereign or independent.21

19 Elliot's Debates, 2d ed., vol. iv, pp. 301, 302. See also Wilson's remarks on the nature of the Confederation. Considerations on the Bank of North America, Wilson's Works, vol. iii, pp. 406, 407.

20 The Massachusetts Magazine for March, 1789, says, in its summary of American News and Politics :

"RHODE ISLAND. This foreign State has again refused to accede to a union with her late sisters. Anxious of enjoying the protection of the Union, the inhabitants of Newport, Providence and other places are determined to sue for its protection and to be annexed to Massachusetts or Connecticut, thereby to evince to their present legislature, that unless they take

measures for a speedy adoption of the Constitution, their boasted sovereignty as an independent State will ere long be at an end."

"NORTH CAROLINA. This other foreign State has lately evinced a disposition to become a member of the United States." The revenue laws put them upon the same footing as foreign States, and there was no provision for them in the first Judiciary Act. 1 Story's Laws of the U. S., pp. 30, 50, 53; Baldwin's Views, p. 96.

21 In his valedictory to the Senate, Judah P. Benjamin, of Louisiana, argued ingeniously that the United States held the sovereignty of this territory in trust until the admission of each new State. (Blaine's Twenty

It seems clear, however, that Marshall was right when he said:"As preliminary to the very able discussions of the Constitution which we have heard from the bar, and as having some influence on its construction, reference has been made to the political situation of these States anterior to its formation. It has been said that they were sovereign, were completely independent, and were connected with each other only by a league. This is true. But when these allied sovereigns converted their league into a government, when they converted their congress of ambassadors, deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature empowered to enact laws on the most interesting subjects, the whole character in which the States appear underwent a change, the extent of which must be determined by a fair consideration of the instrument by which that change was effected." 22

§ 13. The Constitution was formed by the Thirteen States. It must also be conceded that the Constitution was formed by the thirteen States and not by the people of the United States at large. The delegates were in some cases elected by the people of the different States, and in others appointed by their respective legislatures. They voted in the Convention by States and not as individuals. The object of the ratification by the people of the several States was because it was deemed that the legislatures had no power under their respective constitutions to delegate or grant away any power vested in them by the ratification of the Constitution. These facts are plain to every student of the history of the appointment of the delegates to the Federal Convention, the proceedings of that Convention, and the ratificaof the Constitution by the thirteen States.

§ 14. Form of Ratifications of the Constitution. The Constitution was ratified by the people of the thirteen States acting through conventions elected for that purpose. There is nothing in the form of the ratifications which supports

Years in Congress, vol. i, pp. 249-251.) Senator Yulee, of Florida, made a similar claim. (Ibid.)

22 Chief Justice Marshall in Gibbons r. Ogden, 9 Wheaton 1, 187.

§ 13. 1 See the Speech of Madison, quoted infra, § 19. For the credentials of the delegates to the State Convention, see supra, § 12, note 5.

the position that the Constitution was a league, or an amendment of the Articles of Confederation, or that the right to withdraw from it was reserved. Seven of them ran in the name of "We, the delegates of the people of the State."1 That of Delaware was in the name of "We, the deputies of the people of the State of Delaware." That of New Jersey, "We, the delegates of the State of New Jersey." The ratifications of Massachusetts, South Carolina, New Hampshire, and North Carolina were in the third person, and in the name of "the Convention," or "this Convention." All of them used the phrase "ratify." Eight of them, the phrase, "assent to and ratify."2 That of Delaware stated that its deputies did "freely and entirely approve of, assent to, ratify and confirm the said Constitution." That of New Jersey, that they did "agree to ratify and confirm the same and every part thereof." That of Connecticut, "assent to, ratify, and adopt the Constitution." The same form was used by Georgia. The Convention of North Carolina resolved that it did "adopt and ratify the said Constitution and form of government." Each of them acted in the name and on behalf of the people of their respective State, and no others. The preamble of the ratification of Massachusetts, however, recited that the Convention acknowledged, "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 force 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," with a recital of the other clauses set forth in the preamble to the Federal Constitution. The use of the word "compact" here, if of any legal effect, can only strengthen the position of those who claim that the Constitution was a mere social compact between the whole people of the United States at large, and not a compact in the nature of a treaty between the people of the several States.

§ 14. 1 The States of Pennyslvania, Connecticut, Georgia, Maryland, Virginia, New York and Rhode Island. The forms of the credentials of the delegates are quoted supra, § 12, note 5.

2 Pennsylvania, Massachusetts, Maryland, South Carolina, New Hampshire, Virginia, New York and Rhode Island.

The words "with each other" would have been replaced by some phrase, such as "between the people of each State," had that been the intent.

Much stress is laid, by the advocates of secession, upon the declarations in the ratifications of Virginia and New York. The ratification of New York is preceded by a declaration of twentyfour articles concerning political rights and the construction of the Constitution. These are followed by the declaration, —

"Under these impressions, and declaring that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution, and in confidence that the amendments which shall have been proposed to the said Constitution will receive an early and mature consideration, we, the said delegates, in the name and on behalf of the people of the State of New York, do by these presents assent to and ratify the said Constitution."

Manifestly, this declaration of the understanding in New York, to which the other States did not accede, could have no binding effect upon the construction of the instrument. It was not intended to be either a reservation or a condition.

But there is nothing in those declarations which tends to support the right of secession. The only one upon which stress is laid is the third, which states

"That the powers of the government may be reassumed by the people, whensoever it shall become necessary to their happiness."

This merely refers to the right of revolution which is recognized in the Declaration of Independence, and does not claim to be a reservation of any legal right of receding from the instrument thus ratified. Similar observations apply to the ratification of Virginia, which is preceded by the declaration

"That the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them, and at their will;"

and concludes:

"With these impressions, with a solemn appeal to the Searcher of all hearts for the purity of our intentions, and under the conviction that whatsoever imperfections may exist in the Constitution, ought rather to