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." 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 The words "with each other" would have been replaced by some phrase, such as "between the people of each State," had that been the intent.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 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." 3 § 15. Legality of an Indissoluble Union between Sovereign States. 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, an 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 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.3 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. 3 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." These authorities would seem to be conclusive. And this position was conceded by Jefferson Davis, who said : — the people of the States "No doubt 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. 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 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. |