by Conventions, and not by their Legislatures, should ratify the Constitution in order to make it binding upon all the people.1 Mr. Madison's wise and prudent counsel prevailed; the § 195. ferring the plan to the Legisla 1 Monday, July 23d, In Conven- tures. tion. The nineteenth Resolution (of the Committee of the Whole) referring the new Constitution to Assemblies to be chosen by the people, for the express purpose of ratifying it, was next taken into consideration. "Mr. Ellsworth moved that it be referred to the Legislatures of the States for ratification. Mr. Paterson seconded the motion. "Colonel Mason considered a reference of the plan to the authority of the people, as one of the most important and essential of the Resolutions. Mr. Randolph; It is of great importance, therefore, that the consideration of this subject should be transferred from the Legislatures, where this class of men (local demagogues) have their full influence, to a field in which their efforts can be less mischievous. It is moreover worthy of consideration, that some of the States are averse to any change in their Constitution, and will not take the requisite steps, unless expressly -called upon, to refer the question to the people. "Mr. Gouverneur Morris considered the inference of Mr. Ellsworth from the plea of necessity, as applied to the establishment of a new system, on the consent of the people of a part of the States, in favor of a like establishment, on the consent of a part of the Legislatures, as a non sequitur. If the Confederation is to be pursued, no alteration can be made without the unanimous consent of the Legislatures. Legislative alterations not conformable to the Federal compact would clearly not be valid. The Judges "Mr. Gerry considered would consider them as null and the Confederation to be paramount void. Whereas, in case of an apto any State Constitution. The last peal to the people of the United Article of it, authorizing altera- States, the supreme authority, the tions, must consequently be so as Federal compact may be altered by well as the others; and every thing a majority of them, in like manner done in pursuance of the article, as the Constitution of a particular must have the same high authority State may be altered by a majority with the article. of the people of the State. The "Mr. Gorham was against re-amendment moved by Mr. Ells Constitution was sent to the Federal Congress with the request to have it ratified by Conventions of delegates chosen by the people of each State, but to be called by the respec worth erroneously supposes, that we are proceeding on the basis of the Confederation. This Convention is unknown to the Confederation. dangerous doctrine, that a Legislature could change the Constitution under which it held its existence. There might indeed be some Constitutions within the Union, which had given a power to the Legislature to concur in alterations of the Federal compact. But there were certainly some which had not; and in the case of these, a ratification must of necessity be obtained from the people. He considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a "Mr. King thought with Mr. Ellsworth that the Legislatures had a competent authority, the acquiescence of the people of America in the Confederation being equivalent to a formal ratification by the people. He thought with Mr. Ellsworth, also, that the plea of necessity was as valid in the one case, as the other. At the same time, he preferred a reference to the authority of the people expressly dele-league or treaty, and a Constitution. gated to Conventions, as the most The former, in point of moral oblicertain means of obviating all dis- gation, might be as inviolable as the putes and doubts concerning the latter. In point of political operalegitimacy of the new Constitution, tion, there were two important disas well as the most likely means of tinctions in favor of the latter. drawing forth the best men in the First, a law violating a treaty rati States to decide on it. He re-fied by a pre-existing law might be marked that among other objec-respected by the Judges as a law, tions, made in the State of New though an unwise or perfidious one. York to granting powers to Con- A law violating a Constitution esgress, one had been, that such pow-tablished by the people themselves, ers as would operate within the would be considered by the Judges States could not be reconciled to as null and void. Secondly, the the Constitution, and therefore doctrine laid down by the law of were not grantable by the Legis- nations in the case of treaties is, lative authority. He considered it that a breach of any one article by as of some consequence, also, to get any of the parties frees the other rid of the scruples which some parties from their engagements. members of the State Legislatures In the case of a union of people might derive from their oaths to under one constitution, the nature support and maintain the existing of the pact has always been underConstitutions. stood to exclude such an interpre"Mr. Madison thought it clear tation. Comparing the two modes, that the Legislatures were incompe-in point of expediency, he thought tent to the proposed changes. all the considerations which recomThese changes would make essen- mended this Convention, in prefertial inroads on the State Constituence to Congress, for proposing the tions; and it would be a novel and reform, were in favor of State Con 2 tive State Legislatures. The ratification, therefore, of the perfected work of the Constitutional Convention not only ventions, in preference to the Legis- | way be the deed of both. The forlatures for examining and adopting it. mer method, that the people of the United States should ordain, and the States ratify, was adopted. For if it should be alleged at any future period that the American people had no national or organic existence, and that the States were the sole authors of the Constitu "On the question on Mr. Ellsworth's motion to refer the plan to the Legislatures of the States, Connecticut, Delaware, Maryland, aye-3; New Hampshire, Massachusetts, Pennsylvania, Virginia, North Carolina, South Carolina, tion, and might undo what they Georgia, no-7. had done, it would still be obvious that the States mutually agreed that such a people should be regarded as existing, and that the government should be treated as its handiwork, they would, on a well-known and familiar principle "Mr. Gouverneur Morris moved, that the reference of the plan be made to one General Convention, chosen and authorized by the people, to consider, amend, and establish the same. Not seconded. "On the question for agreeing to which the law has derived from the nineteenth Resolution, touch-ethics, be precluded for all the puring the mode of ratification as re- poses of that government, from deported from the Committee of the nying what they had solemnly adWhole, viz., to refer the Constitu- mitted. I refer to the doctrine of tion, after the approbation of Con- estoppel, that what is held forth gress, to assemblies chosen by the as an inducement to others, shall people,-New Hampshire, Massa- not be retracted after they have chusetts, Connecticut, Pennsyl- acted on the faith of the assurance. vania, Maryland, Virginia, North The effect was to place the soverCarolina, South Carolina, Georgia, eignty of the new government on aye-9; Delaware, no-1." Madi- a basis which was as unalterable as son Papers, Vol. II, pp. 1177-1185. if the Conventions of the various 2 In his American Constitutional States had publicly proclaimed and Law, already referred to, Mr. Hare crowned a king. There are, as says, vol. I, pp. 89-91: "When the Mr. Madison contended in the reConvention met at Philadelphia, marks already cited, and as Jackthe people of the United States, not son insisted in his proclamation less than the people of the States, against nullification, grants which came through their agents, and must be irrevocable in order to atbeing present in both capacities, tain their object; and the establishmight determine in which they ment of a government is one of would act in framing the Consti- them. Whether the newly created tution. Whether it should be made sovereignty was vested in a comby the people of the United States monwealth or in a monarchy, it and sanctioned by the States, or would on every principle of namade by the States and sanctioned tional and public law have a claim by the people, might seem imma- to the allegiance of its subjects terial, because it would in either which it might enforce by arms. assured its permanency but also its nationality and absolutely verified the preamble, "We, the people," thus forever obviating all questions as to the increased authority of the Federal Government, as well as the additional limitations (Citing in a note United States vs. Maurice, MARSHALL, Ch. J., 2 Brock, 96, p. 109, and Van Brocklin vs. Temple, 117 U. S. 151, p. 154.) "Established not by one, by two, or by three of the States, but by the people of all the States, speaking in their collective capacity as the people of the United States, the union could not be dissolved consistently with that well known maxim that the power which bound is the only one that can unloose, unless all concurred, and then only because the concurrence of the citizens of all the States in such an act would, on a principle already stated, be in effect a renunciation or abdication by the people of the United States." Mr. Curtis says in his Constitutional History of the United States, 2d Vol, pp. 115-116: "The reader who has followed me through the preceding volume has seen that at a very early period in the deliberations of the convention it was settled that the new government must be divided into the three departments of the legislature, the executive, and the judicial, and that it must be a national government. It may here be useful to condense into one statement what has already been given in greater detail in regard to the early distinction between a tional' and a 'federal' government. It has appeared that many important members of the convention admitted at once the necessity for a more efficient government than that of the first Confederacy of the states, but they believed that na the existing system of the Union could be made to answer all requirements by distributing its powers into the three departments of a legislative, an executive, and a judiciary, without altering the principle which made the Union a close league between sovereign states for certain purposes common to them all. But under this principle there had been no mode by which the legislative, the executive, or the judicial powers could be made to act directly upon individuals, whether those powers were vested in one body of men or in several bodies. Nor had such a mode of action upon individuals been devised in any of the confederacies between different states, either in ancient or in modern times. It was found that in order to reach and introduce the principle of direct action upon the individual citizen, some means must be discovered by which the powers of the central government, whatever they were to be, could be made supreme over the separate powers of the states, in case of any conflict. To abolish the states, or to fuse all the elements of political sovereignty into one mass, was out of the question. The convention was not assembled and had not been instituted with any design or expectation that the people of the states would merge themselves in one national democracy, or deposit the whole of their respective sovereignties in the hands of a central government of any form or description." upon State Sovereignty, and making the Constitution, the laws of the United States, and all treaties made under their authority, the supreme law of the land and absolutely binding not only on the judges, as expressed in the Constitution, but also upon all the inhabitants of all the States.3 $196. Results of the Convention; Washington's meditation. But whether the members of that Convention themselves knew what they had accomplished will never be known. Perhaps some of them thoroughly appreciated that they had laid the foundations of a Nation, perhaps others felt that the State life had been preserved to the exclusion of all centralization. Bancroft declares the members were awe-struck at the result of their councils; the Constitution was a nobler work than any one of them had believed it possible to devise, and he adds that they all dined together, and took a cordial leave of each other; a single line in that summary of the day's work contains a wondrous world of thought. "Washington," he says "retired at an early hour of the evening to meditate on the momentous work which had been executed." That great man well knew that the sun carved upon the back of the chair which he had occupied during those long sessions, and which had been so effectively used as a simile by Doctor Franklin at the close of the final session, not only was a rising and not a setting sun,2 but that it was rising upon a nation that, through the efforts of men who, like himself, had buried all local selfishness in the noble efforts they had made during the past months, was fully endowed with every attribute of nationality and sovereignty which would enable it ere the close of 1 See opinions of Supreme Court Randolph, Mr. Mason and Mr. as to the nature of the ratification Gerry, who declined giving it the of the Constitution cited, and sanction of their names, the Conquoted from, in § 27, pp. 47 et seq.vention dissolved itself by an adante. journment sine die. § 196. 1 Bancroft's History of the Corstitution of the United States, 6th Edition, New York, 1893, vol. 2, p. 222. "Whilst the last members were signing, Doctor Franklin, looking towards the President's chair, at the back of which a rising sun happened to be painted, observed 2"The Constitution being signed to a few members near him, that by all the members, except Mr. | painters had found it difficult to |