Abbildungen der Seite
PDF
EPUB

be examined in the mode prescribed therein, than to bring the union into danger by a delay with a hope of obtaining amendments previous to the ratifications, we, the said delegates, in the name and in behalf of Virginia, do by these presents assent to and ratify the Constitution recommended on the 17th day of September, 1787, by the Federal Convention, for the Government of the United States, hereby announcing to all those whom it may concern, that the said Constitution is binding upon the said people according to an authentic copy hereto annexed in the words following."

In the New York Convention, Lansing moved a resolution which reserved the right to withdraw from the Union. Hamilton wrote for advice to Madison, who was in Congress at New York. The answer of Madison was read to the Convention by Hamilton as follows:

"My opinion is, that a reservation of a right to withdraw, if amendments be not decided on under the form of the Constitution within a certain time, is a conditional ratification; that it does not make New York a member of the new Union, and, consequently, that she could not be received on that plan. The Constitution requires an adoption in toto and forever. It has been so adopted by the other States. An adoption for a limited time would be as defective as an adoption of some of the articles only. In short, any condition whatever must vitiate the ratification. The idea of reserving a right to withdraw was started at Richmond, and considered as a conditional ratification, which was itself abandoned as worse than a rejection."

113

§ 15. Legality of an Indissoluble Union between Sovereign States.

[ocr errors]

The concessions, that the separate States prior to the Constitution were sovereign and independent, and that the Federal Constitution was formed and ratified by them in their independent sovereign capacities, by no means compel the conclusion that they had no power to merge their several sovereignties into one. Metaphysicians have claimed that a sovereignty cannot thus commit suicide,1 but the arguments are merely a play upon words, and

3 Hamilton's Works, vol. ii, pp. 467471; quoted in Bancroft's History, ed. of 1886, vol. vi, p. 459.

§ 15. 1 See the Republic of Repub

lics, by Bernard J. Sage, under the pseudonym of P. C. Centz, Barrister, 4th ed., Part I, ch. vii, p. 48; Part II, ch. xiii, p. 142; ch. xiv, p. 147,

the facts conclusively dispose of them. The sovereignty of a State, like that of a monarch, can be lost by abdication as well as by conquest. Without discussing the merger of the United States and Provinces of the Netherlands into the Kingdom of Holland, and the different sovereignties of the Italian peninsula into the Kingdom of Italy, we have a case known to the makers of the Federal Constitution, with comments on it by a writer whom they and their contemporaries recognized as an authority. After the union of the crowns of Scotland and England by the succession of James VI of Scotland to the English throne in 1603, the countries remained separate kingdoms for more than a century. Under Queen Anne, in 1707, the two parliaments agreed to adopt twenty-five articles of union between the nations. The acts of ratification recite the acts of the Scotch Parliament, which established the church of Scotland and the four Scotch universities, and provide for a clause in the coronation oath promising the inviolable maintenance of the former, together with the English acts of uniformity, and all other acts then in force for the preservation of the church of England. The treaty covenanted and it was enacted that these acts "shall forever be observed as fundamental and essential conditions of the union." Blackstone said:

"Upon these articles and act of union, it is to be observed, 1. That the two kingdoms are now so inseparably united, that nothing can ever disunite them again, except the mutual consent of both, or the successful resistance of either, upon apprehending an infringement of those points which, when they were separate and independent nations, it was mutually stipulated should be fundamental and essential conditions of the union."" "It may justly be doubted whether even such an infringement (though a manifest breach of good faith, unless done upon the most pressing necessity) would of itself dissolve the union; for the bare idea of a state, without a power somewhere vested to alter every

ch. xiv, p. 155. Part III, ch. vi, p. 193. Part IV, ch. v, p. 307. This is by far the ablest argument in support of the legal right of secession.

2 The union between England and Scotland was cited as an analogy by Roger Sherman in the Letters of a Countryman, New Haven Gazette,

Nov. 14, 1787; Ford's Essays on the Constitution, pp. 216, 217; and by Governor Randolph in the Virginia Convention. Elliot's Debates, 2d ed., vol. iii, p. 196. See supra, § 4, note 4. 8 See English Act, 5 Ann., c. 8, 1706; supra, § 7, note 3. The Scotch Act was a year later.

part of its laws, is the height of political absurdity. The truth seems to be, that in such an incorporate union (which is well distinguished by a very learned prelate from a fœderate alliance, where such an infringement would certainly rescind the compact) the two contracting states are totally annihilated, without any power of a revival; and a third arises from their conjunction, in which all the rights of sovereignty, and particularly that of legislation, must of necessity reside." 4

These authorities would seem to be conclusive. tion was conceded by Jefferson Davis, who said:

And this posi

"No doubt the States the people of the States if they had been so disposed, might have merged themselves into one great consolidated State, retaining their geographical boundaries merely as matters of convenience." 5

§ 16. The Constitution is not a Legal Compact.

The Constitution is in no legal sense a compact between the States. That it is, has been the contention of the advocates of nullification and secession.1 They base their position on the fact that it has been called a compact by statesmen at the time of its

4 Blackstone's Commentaries, vol. i, p. 97, note citing Warburton's Alliance, 195.

Blackstone continues in the same note: "But the wanton or imprudent exertion of this right would probably raise a very alarming ferment in the minds of individuals; and therefore it is hinted above that such an attempt might endanger (though by no means destroy) the union.

"To illustrate this matter a little farther, an act of Parliament to repeal or alter the act of uniformity in England, or to establish episcopacy in Scotland, would doubtless in point of authority be sufficiently valid and binding; and notwithstanding such an act, the union would continue unbroken. Nay, each of these measures might be safely and honorably pursued, if respectively agreeable to the sentiments of the English church, or

the kirk in Scotland. But it should seem neither prudent, nor perhaps consistent with good faith, to venture upon either of those steps, by a spontaneous exertion of the inherent powers of Parliament, or at the instance of mere individuals. So sacred indeed are the laws above mentioned (for protecting each church and the English liturgy) esteemed, that in the Regency acts both of 1751 and 1765 the regents are expressly disabled from assenting to the repeal or alteration of either these or the act of settlement." Ibid., p. 96.

5 Davis, Rise and Fall of the Confederate Government, vol. i, p. 155.

§ 16. 1 See Calhoun's speech in the Senate, Feb. 26, 1833, in reply to Webster's attack on his resolutions in regard to the Force Bill. Niles' Register, vol. xliii, Sup. p. 259; Sage's The Republic of Republics, passim.

adoption 2 and since, even by some such as Webster, who denied the corollary that a breach by some of the parties legally absolved from obedience the rest.

The difficulty here lies in the fact that the term is used by nearly all whom they quote in a colloquial and not a legal sense. Most laws as well as constitutions are the result of compromises of which men speak as compacts. At the birth of the Constitution, more than now, this term was common, since there were then more disciples of the theory that all law was based on the social contract. A gross breach of such a compromise, whether contained in a statute or a constitution, would, it was conceded, release the injured party from all further obligations. But the latter's action, although justified morally, was none the less illegal, and, where a people was a party, could only be accomplished by a revolution. When James II was deposed, it was resolved by the two Houses of Parliament that

"King James the Second, having endeavored to subvert the Constitution of the kingdom by breaking the original contract between the King and the people, and having, by the advice of Jesuits and other wicked persons, violated the fundamental law, and withdrawn himself out of the kingdom, hath abdicated the government, and that the throne is thereby become vacant."

Yet the proceeding is not justified as legal, but is always described as "the glorious revolution of 1688."

An able work by an advocate of the South, just before the Civil War, argues that

[ocr errors]

"The Constitution is indeed a compact between States, but it is also a compact between slaveholding and non-slaveholding sections; and these sections are susceptible of obligations and injuries." 5

2 See Gouverneur Morris, quoted in his Life, vol. iii, p. 193; Hamilton in the Federalist, No. 85; Washington to David Stuart, Oct. 17, 1787; and other quotations in Sage's The Republic of Republics, 4th ed., pp. 202-207.

8 See the Memorial to Congress on the Subject of Restraining the Increase of Slavery in New States to be admitted into the Union, prepared by a committee appointed at a Public Meeting

in Boston, Dec. 3, 1819, consisting of Daniel Webster, Josiah Quincy, and others. Boston, Samuel Phelps, Printer, 1819; Sage's Republic of Republics, Appendix F.

4 "In some sense even government itself is a contract." Brown v. Bank, 8 Mass., 448.

5 The Lost Principle, by Barbarossa, Richmond, 1860.

And his arguments in support of the latter are as cogent as those advanced on behalf of the former theory. Yet no lawyer would seriously argue to a court that either of these sections can be a person which can bind and unbind itself any more than it could sue or be sued.

Others, as Hayne, speak of the new government created by the Constitution as a party to the compact:

"Here, then, is a case of a compact between sovereigns; and the question arises, what is the remedy for a clear violation of its express terms by one of the parties.". . . . "The creating power is three-fourths of the States. By their decision the parties to the compact have agreed to be bound, even to the extent of changing the entire form of the government itself; and it follows of necessity, that, in case of a deliberate and settled difference of opinion between the parties to the compact, as to the extent of the powers of either, resort must be had to their common superior (that power which may give any character to the Constitution they may think proper), viz., three-fourths of the States."

[ocr errors]

The exposure of this fallacy by Webster needs no words of

comment:

"His argument consists of two propositions, and an inference. His propositions are

1. That the Constitution is a compact between the states.

2. That a compact between two, with authority reserved to one to interpret its terms, would be a surrender to that one, of all power whatever.

Therefore (such is his inference) the general government does not possess the authority to construe its own powers.

"Now, sir, who does not see, without the aid of exposition or detection, the utter confusion of ideas involved in this so elaborate and systematic argument?

"The Constitution, it is said, is a compact between States: the States, then, and the States only, are parties to the compact. How comes the general government itself a party? Upon the honorable gentleman's hypothesis, the general government is the result of the

6 Mr. Hayne's Reply to Mr. Webster, abridged by himself, delivered in the Senate, January 27, 1830. Elliot's Debates, 2d ed., vol. iv, pp. 509513. So Judge J. S. Black in his argu

ment in Milligan's case said: "That was the compact made with the general government at the time it was created."

« ZurückWeiter »