Congress which recommended the Convention recited as the reason for the same: "Such Convention appearing to be the most suitable means of establishing in these States a firm national government." own enactments is not war. It contemplates no opposing party having a right of resistance. It rests on its power to enforce its own will; and when it ceases to possess this power, it is no longer a government." Daniel Webster's Speech of Feb. 16, 1833, in the Senate, in opposition to Calhoun's Resolutions of Jan. 22, 1833. Niles's Register, vol. xliii, Appendix, p. 170; Webster's Speeches, 8th ed., vol. ii, pp. 174-176. See Calhoun's Reply of Feb. 26, 1833, Niles's Register, vol. xliii, p. 259; Calhoun's Speeches pp. 98-122, quoted in Stephens' Constitutional View of the Late War between the States, vol. 1, pp. 343–387. "I do not agree that the Constitution is a compact between States in their sovereign capacities. I do not agree that, in strictness of language, it is a compact at all. But I do agree that it is founded on consent or agreement, or on compact, if the gentleman prefers that word, and means no more by it than voluntary consent or agreement. The Constitution, sir, is not a contract, but the result of a contract; meaning by contract no more than assent. Founded on consent, it is a government proper. Adopted by the agreement of the people of the United States, when adopted, it has become a Constitution. The people have agreed to make a Constitution; but, when made, that Constitution becomes what its name imports. It is no longer a mere agreement. Our laws, sir, have their foundation in the agreement or consent of the two houses of Congress. We say, habitually, that one house proposes a bill, and the other agrees to it; but the result of this agreement is not a compact, but a law. The law, the statute, is not the agreement, but something created by the agreement; and something which, when created, has a new character, and acts by its own authority. So the Constitution of the United States, founded in or on the consent of the people, may be said to rest on compact or consent; but it is not itself the compact, but its result. When the people agree to erect a government, and actually erect it, the thing is done, and the agreement is at an end. The compact is executed, and the end designated by it attained. Henceforth, the fruit of the agreement exists, but the agreement itself is merged on its own accomplishment, since there can be no longer a subsisting agreement or compact to form a constitution or government, after that constitution or government has been actually formed and established." Daniel Webster's Speech of Feb. 16, 1833, in the Senate, in opposition to Calhoun's Resolutions of Jan. 22, 1833. Niles's Register, vol. xliii, Appendix, p. 170; Webster's Speeches, 8th ed., vol. ii, pp. 176-177. See Calhoun's Reply of Feb. 26, 1833, Niles's Register, vol. xliii, 259; Calhoun's Speeches, pp. 98-122, quoted in Stephens' Constitutional View of the Late War between the States, vol. i, pp. 343-387. So, marriage is founded upon contract, but when solemnized is a status, which is something more than a contract. § 17. 1 Elliot's Debates, 2d ed., vol. i, p. 120. At the opening of the Federal Convention, Governor Randolph, on behalf of the delegates from Virginia, presented a series of resolutions as the foundation of their proceedings. The first was: "Resolved, that the Articles of Confederation ought to be so corrected and enlarged as to accomplish the objects proposed by their institution; namely, 'common defence, security of liberty, and general welfare.'" 2 The resolutions throughout referred to a "national legislature," "a national executive," and "a national judiciary." 3 Charles Pinckney, of Virginia, also laid before the House "the draft of a Federal Government, which he had prepared, to be agreed upon between the free and independent States of America." entitled: "Plan of a Federal Constitution." The copy of this latter document, which is now preserved, presents a singular likeness to the Constitution as finally adopted. It is believed, however, to be a corrected copy, which contains many alterations from the original, consisting of propositions which were subsequently adopted by the Convention.4 2 Madison Papers, Elliot's Debates, 2d ed., vol. v, p. 127; ibid., p. 129. 3 Ibid., pp. 127-128. 4 Note of Mr. Madison to the Plan of Charles Pinckney, May 29, 1787:"The length of the document laid before the Convention, and other circumstances, having prevented the taking of a copy at the time, that which is inserted in the debates was taken from the paper furnished to the secretary of State, and contained in the Journal of the Convention, published in 1819; which, it being taken for granted that it was a true copy, was not then examined. The coincidence in several instances between that and the Constitution, as adopted, having attracted the notice of others, was at length suggested to mine. On comparing the paper with the Constitution in its final form, or in some of its stages, and with the propositions and speeches of Mr. Pinckney in the Convention, it was apparent that considerable error had crept into the paper, occasioned possibly by the loss of the document laid before the Convention (neither that nor the resolution offered by Mr. Patterson being among the preserved papers), and by a consequent resort for a copy to the rough draught, in which erasures and interlineations following what passed in the Convention, might be confounded, in part at least, with the original text, and, after a lapse of more than thirty years, confounded also in the memory of the author. There is in the paper a similarity in some cases, and an identity in others, with details, expressions, and definitions, the results of critical discussions and modification in the Convention, that could not have been anticipated. Examples may be noticed in Article VIII of the paper; which is remarkable also for the circumstance, that, whilst it On the following day, in imitation of the practice of the Confederation: "The house went into Committee of the Whole on the state of the Union. Mr. Gorham was elected to the chair by ballot. The proposi specifies the functions of the President, no provision is contained in the paper for the election of such an officer, nor indeed for the appointment of any executive magistracy, notwithstanding the evident purpose of the author to provide an entire plan of a federal government. Again, in several instances where the paper corresponds with the Constitution, it is at variance with the ideas of Mr. Pinckney, as decidedly expressed in his propositions, and in his arguments, the former in the Journal of the Convention, the latter in the report of its debates. Thus, in Article VIII of the paper, provision is made for removing the President by impeachment, when it appears that, in the Convention, on the 20th of July, he was opposed to any impeachability of the executive magistrate. In Article III it is required that all money bills shall originate in the first branch of the legislature; which he strenuously opposed on the 8th of August, and again on the 11th of August. Article V, members of each House are made ineligible to, as well as incapable of holding, any office under the Union, etc., as was the case at one stage of the Constitution, a disqualification highly disapproved and opposed by him on the 14th of August. A still more conclusive evidence of error in the paper is seen in Article III, which provides, as the Constitution does, that the first branch of the legislature shall be chosen by the people of the several States; whilst it appears that on the 6th of June, according to previous notice, too, a few days only after the draught was laid In before the Convention, its author opposed that mode of choice, urging and proposing, in place of it, an election by the legislatures of the several States." "The remarks here made, though not material in themselves, were due to the authenticity and accuracy aimed at in this record of the proceedings of a public body so much an object, sometimes, of curious research, as at all times of profound interest." "Striking discrepancies will be found on a comparison of his plan as furnished to Mr. Adams, and the view given of that which was laid before the Convention, in a pamphlet published by Francis Childs at New York, shortly after the close of the Convention. The title of the pamphlet is Observations on the plan of government, submitted to the Federal Convention on the twenty-eight of May, 1789, by Charles Pinckney,' etc. A copy is preserved among the Select Tracts,' in the library of the Historical Society of New York. But what conclusively proves that the choice of the House of Representatives by the people could not have been the choice in the lost paper, is a letter from Mr. Pinckney to James Madison, of the 28th of March, 1789, now on his files, in which he emphatically adheres to a choice by the State legislatures. The following is an extract: Are you not, to use a full expression, abundantly convinced that the theoretical nonsense of an election of the members of Congress by the people, in the first instance, is clearly and practically wrong that it will in the end be the means of bringing our councils into tions of Mr. Randolph, which had been referred to the committee, being taken up, he moved, on the suggestion of Mr. G. Morris, that the first of his propositions, to wit: Resolved, that the Articles of Confederation ought to be so corrected and enlarged, as to accomplish the objects proposed by their institution; namely, common defense, security of liberty, and general welfare,' — should mutually be postponed, in order to consider the three following: 1. That a union of the States merely federal will not accomplish the objects proposed by the Articles of Confederation, namely, common defense, security of liberty, and general welfare. 2. That no treaty or treaties among the whole or part of the States, as individual sovereignties, would be sufficient. "That a national government ought to be established, consisting of a supreme legislative, executive, and judiciary.' "The motion for postponing was seconded by Mr. G. Morris, and unanimously agreed to. "Some verbal criticisms were raised against the first proposition, and it was agreed, on motion of Mr. Butler, seconded by Mr. Randolph, to pass on to the third, which underwent a discussion, less, however, on its general merits than on the force and extent of the particular terms national and supreme. "Mr. Charles Pinckney wished to know of Mr. Randolph, whether he meant to abolish the State governments altogether. Mr. Randolph replied, that he meant by these general propositions merely to introduce the particular ones which explained the outlines of the system he had in view. "Mr. Butler said, he had not made up his mind on the subject, and was open to the light which discussion might throw on it. After some general observations, he concluded with saying, that he had opposed the grant of powers to Congress, heretofore, because the whole power was vested in one body. The proposed distribution of the powers with different bodies changed the case, and would induce him to go great lengths. "Gen. Pinckney expressed a doubt whether the act of Congress. recommending the Convention, or the commissions of the deputies to it, would authorize a discussion of a system founded on different principles from the Federal Constitution. "Mr. Gerry seemed to entertain the same doubt. contempt and that the legislatures (of the States) are the only proper judges of who ought to be elected?'" Note by Madison. Madison Papers, Elliot's Debates, 2d ed., vol. v, pp. 570-579. "Mr. Gouverneur Morris explained the distinction between a federal and a national supreme government; the former being a mere compact resting on the good faith of the parties, the latter having a complete and compulsive operation. He contended that in all communities there. must be one supreme power, and one only. "Mr. Mason observed, not only that the present Confederation was deficient in not providing for coercion and punishment against delinquent states, but argued very cogently, that punishment could not, in the nature of things, be executed on the States collectively, and therefore that such a government was necessary as could directly operate on individuals, and would punish those only whose guilt required it. "Mr. Sherman admitted that the Confederation had not given sufficient power to Congress, and that additional powers were necessary; particularly that of raising money, which, he said, would involve many other powers. He admitted, also, that the general and particular jurisdictions ought in no case to be concurrent. He seemed, however, not to be disposed to make too great inroads on the existing system; intimating, as one reason, that it would be wrong to lose every amendment by inserting such as would not be agreed to by the States. "It was moved by Mr. Reed, and seconded by Mr. Charles Cotesworth Pinckney, to postpone the third proposition last offered by Mr. Randolph, viz., 'that a national government ought to be established, consisting of a supreme legislative, executive, and judiciary,' in order to take up the following, viz.: Resolved, That, in order to carry into execution the design of the states in forming this Convention, and to accomplish the objects proposed by the Confederation, a more effective government, consisting of a legislative, executive, and judiciary, ought to be established.' The motion to postpone for this purpose was lost. "Massachusetts, Connecticut, Delaware, South Carolina, ay, 4; New York, Pennsylvania, Virginia, North Carolina, no, 4. 6 "On the question, as moved by Mr. Butler, on the third proposition, it was resolved, in committee of the whole, that a national government ought to be established, consisting of a supreme legislative, executive, and judiciary.' "Massachusetts, Pennsylvania, Delaware, Virginia, North Carolina, South Carolina, ay, 6; Connecticut, no, 1; New York, divided (Col. Hamilton, ay, Mr. Yates, no.)"5 New Jersey and the other States were not represented." 5 Madison Papers. Elliot's Debates, 2d ed., vol. v, pp. 132-134. 6 Yates' Minutes, ibid., vol. i, p. 392. |