delegates intended to frame a new form of government which would enforce the Federal laws by treating the attempted hostile State legislation as a nullity and applying force, not to the State government, but to the individual citizens of the State who resisted, even though they might be State officials. It was said by Ellsworth, in the Connecticut Convention: "We see how necessary for the Union is a coercive principle. No man pretends the contrary; we all see and feel this necessity. The only question is, Shall it be a coercion of law, or a coercion of arms? There is no other possible alternative. Where will those who oppose coercion of law come out? Where will they end? A necessary consea war of the States, one against the other. I am for coercion by law that coercion which acts only upon delinquent individuals. This Constitution does not attempt to coerce sovereign bodies, States, in their political capacity." 21 quence of their principles is So Madison said in the Virginia Convention, when defending the clause which gives to Congress power concurrent with the States to call forth the militia to suppress insurrections and repel invasions: 22 "A concurrence in the former case is necessary, because a whole State may be in insurrection against the Union." 28 Luther Martin wrote to the Maryland Convention: "The time may come when it shall be the duty of a State, in order to preserve itself from the oppression of the general government, to have recourse to the sword; in which case, the proposed form of government declares that the State, and every one of its citizens who acts under its authority are guilty of a direct act of treason." 24 It seems plain, therefore, that the Convention determined, after full discussion, to adopt a plan national in form; but, to conciliate prejudice, avoided the use of the name. Since then until late years, writers judicial, political, and academical have usually eschewed the word, national, and substituted for it "federal." Although since the Civil War the term, National Government, has come into common use, we still ordinarily speak of Federal 21 Elliot's Debates, 2d ed., vol. ii, p. 197. See the remarks of Roger Sherman in the Federal Convention. Ibid., vol. v, p. 450. 22 Constitution, Article I, Section 8. 23 Elliot's Debates, 2d ed., vol. iii, p. 424. 24 Ibid., vol. i, p. 382. practice in the Federal courts. But as appears by the Congres sional resolution quoted at the beginning of this section, as well as in the debates in the Convention, the phrase, federal, is not inconsistent with, national. § 18. History of the Preamble. The change in the nature of the government of the United States from the league embraced in the Articles of Confederation to a Constitution indissoluble by law appears not only in the manner in which the Constitution operates, but also in its preamble. "WE THE PEOPLE of the United States, in order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this CONSTITUTION for the United States of America." The preamble to the instrument which the Constitution abrogated is as follows: "Articles of Confederation and Perpetual Union between the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia. The third of the Articles of Confederation is: "The said States hereby severally enter into a firm league of friendship with each other, for their common defence, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretence whatever." The second Article of the New England Confederation of 1643 provided that: "The said United Colonies, for themselves and their posterities, do joyntly and severally, hereby enter into a firme and perpetuall league of friendship and amytie, for offence and defence, mutuall advise and succour, upon all just occations both for preserveing and propagateing the truth and liberties of the Gospel, and for their owne mutuall safety and wellfare." 1 § 18. 1 Preston's Documents Illustrative of American History, p. 88. The first appearance of the preamble in the reports of the Convention is in Charles Pinckney's plan as now preserved, where it is in the same form as in the draft of the Committee of Detail.2 His plan was referred to that Committee together with the resolutions specifically adopted, of which the first was : “Resolved, that the government of the United States ought to consist of a supreme legislative, judiciary and executive." 3 In the report of the Committee of Detail, the preamble appeared: "We, the people of the States of New Hampshire, Massachusetts, Rhode Island and Providence Plantations, Connecticut, New York, New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina, and Georgia, do ordain, declare, and establish, the following Constitution for the government of ourselves and our posterity: 6 "Article I. The style of the government shall be, The United States of America.' "' 4 At that time it had not been determined to ignore that part of the Articles of Confederation which required unanimous consent to any amendment of the same. After the Convention had decided that a ratification by nine States should be sufficient to establish the Constitution between themselves, the Committee of Style, without any apparent discussion of the subject in the Convention, changed the preamble to its present form. The substitution of the phrase, "people of the United States," for "the people of the States of New Hampshire" and the other twelve States, had evidently no signification except to make it clear that the United States might consist of a less number than the original thirteen. 2 Madison Papers, Elliot's Debates, 2d ed., vol. v, p. 129. In the opinion of Mr. Madison, this copy contains many alterations made by the other in the original paper during the progress of the Convention. (Appendix, No. 2, to Madison Papers, Elliot's De bates, 2d ed., vol. v, p. 578, quoted 4 Ibid., pp. 376, 377. 5 Articles of Confederation, XIII. § 19. Significance of the Phrase, "We the People of the United States." From the use of the phrase, "We the people of the United States," some writers of respectable authority have argued that the Constitution was adopted by the people of the United States at large, and not by the people of the different States which ratified the Constitution. The best statement of this view is that of Webster: "It," the Constitution, "declares that it is ordained and established by the People of the United States. So far from saying that it is established by the governments of the several States, it does not even say that it is established by the people of the several States. But it pronounces that it is established by the people of the United States in the aggregate. Doubtless the people of the several States taken collectively constitute the people of the United States, but it is in this their collective capacity, it is as all the people of the United States that they establish the Constitution."1 The history of the formation and ratification of the Constitution contradicts these statements. As originally drawn the preamble ran, "We the people of " the thirteen States, each of which was specifically named. It was then intended not to violate the Articles of Confederation, but to require unanimous consent to the change. When, at a later session, the Convention ventured to require the assent of but nine States to put the new government in force, the language was altered so that it might serve in such a case; and no other intent was suggested or contemplated. The States did accede to the Federal Constitution. Each State § 19. 1 Webster's Reply to Hayne. It is thus put by the historian Motley: "The Constitution was not drawn up by the States, it was not promulgated in the name of the States, it was not ratified by the States. The States never acceded to it, and possess no power to secede from it. It was 'ordained and established' over the States by a power superior to the States by the people of the whole land in their aggregate capacity, acting through conventions of delegates - expressly chosen for the purpose on Convention acted and claimed to act only in the name of the people of its own State.2 The reasons for requiring a ratification by the people of each State instead of the State legislatures were principally the grave doubts as to the power of the State legislatures to delegate to Congress part of the legislative powers vested in them by their respective peoples; but also the intention to deprive those legislatures of all claim to the right of secession, and to give to the Constitution the sanction of a fundamental law ordained by all the people upon whom it operated. These views were thus expressed by Madison: — Mr. Madison thought it clear that the legislatures were incompetent to the proposed changes. These changes would make essential inroads on the State Constitutions; and it would be a novel and 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 league or treaty, and a constitution. The former, in point of moral obligation, might be as inviolable as the latter. In point of political operation, there were two important distinctions in favor of the latter. First, a law violating a treaty ratified by a pre-existing law might be respected by the judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves would be considered by the judges as null and void. Secondly, the doctrine laid down by the law of nations in the case of treaties is, that a breach of any one article by any of the parties frees the other parties from their engagements. In the case of a union of people under one constitution, the nature of the fact has always been understood to exclude such an interpretation. Comparing the two modes, in point of expediency, he thought all the considerations which recommended this Convention, in preference to Congress, for proposing the reform, were in favor of State Conventions, in preference to the legislatures, for examining and adopting it." 8 2 Supra, § 13. See the Federalist, No. xxxix, quoted infra, § 28. 3 Madison Papers, Elliot's Debates, 2d ed., vol. v, pp. 355, 356. |