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was intended as an instrument in their hands, against refractory kinys.*
Every people has the right of revolution, that is, of overturning an existing government, but it must be a revolution, or the old government will still represent the sovereignty, and alone can exercise sovereign powers, consistently with the Constitution, which, until it is subverted, is the supreme law of the land, controlling even those who formed it, as in case of any other contract or agreement among men.
A freeman has the command of his own conduct, but surely he may bind himself with others to do or to forbear many things, with a stipulation that the contract may, at any time, be altered with the consent of any specified proportion of contractors. Now, if there be no
* "'Tis John Mariana," said Sir Thomas Craig, of Riccartoun, who has been modestly called the “Justinianus Scotus,' “ 'tis John Mariana, the latest writer of the Spanish history, who, in that speech which he falsely attributes to Francis Davalo, (De rebus Hispan. lib. xix. c. 15) makes use of these words:- The nature of the royal dignity is a sufficient proof that kingdoms may be changed by the consent of the nation, and new kings appointed, because taking their rise from the pleasure of the multitude, according to the exigency of affairs, they may be transferred to others. Neither was another originally substituted into the place of the deceased king, by any hereditary right, but by the will of the people, and he who was to command them all, was chosen by all. It was from the excessive power of kings, that children, not only of corrupt manners but also of a tender age, have succeeded to their parents, and that which ought to be the reward of virtue, is obtained (says he) without any merit.'". It was in 1603 that Craig wrote (we quote from his dedication to the king of his book“ On Succession")—he was horror-struck at this language of the Jesuit. “By these torches,” he continues, (to wit, the plausible reasoning of such discourses) “ both the Jesuits (Doleman and Mariana) endeavour to inflame the minds of the common people, and to put them upon making innovations in the State. But as the same Mariana says, Qui sanari non possunt, ferro exscindendi.' Nor can any thing secure the safety of civil societies against that kind of men but a timely severity; neither shall any government be in peace, in which they are suffered to intermeddle, for they are the most certain pests of all kingdoms and states. As for myself, I have endeavoured as I could, and according to my poor abilities, in this small work, (a folio of about ten pounds avoirdupois) to detect their impieties and impostures.". We believe there can be but little doubt, that the Jesuits were among the first in Europe to broach this doctrine and maintain a principle which is now the basis of all free government. The right even of a private citizen to put to death a tyrant, ruling by usurpation, is plainly and fully avowed by Suarez, (Lib. vi. c. 4, Num. 13) and by Mariana, (De Rege et Regis institutione, lib. i. c. 6.) All the passages of this kind are collected and urged
against the Jesuits in the book entitled “Les Jesuites Criminels de Leze Majeste,” (3d edit. 8vo. Hague, 1759.)
How different was the opinion of that great scholar and republican, Buchanan, from this “ Justinianus Scotus."
B. Uter auctoritatem habet ab altero-Rex ne a lege an Lex a rege?
M. Quid non Rex legi, sed lex Regi coercendo quæsita est. Et a lege id ipsum habet quod Rex est; nam absque eâ Tyrannus est. B. Lex igitur Rege
tior est velut rectrix et moderatrix. B. Uter potentior populus an lex ? M. Universus, opinor, populus.
[Buchanan de jure regni apud Scotos.
power to compel performance, the majority, having the physical power, may refuse further performance, and set up another contract. This, in goverment, would be a revolution. Until, however, such revolution does take place, and as long as a pretence remains that the contracting parties intend to perform their existing obligations, all of their acts must be construed with an honest regard to the intention and obvious construction of the contract. And where a party professes to act under such agreement, his conduct and transactions must be construed by its intentions, and must be controlled and restricted by its provisions. This is too evident for further reasoning. In the case of a government, under a constitution, the people constitute those, who are appointed to execute the powers conferred, their high commissioners, and until the commission is revoked, the people cannot legally disagree to their constitutional acts. Nor can individuals act in contravention to such government, until the majority choose to have a revolution, and establish and settle a new government.
A revolution is the forcible subversion of an existing government against the will of the persons governing, and the establishment of a new one. This brings us to the question, how was the present Constitution of the United States formed? Was it by the authority of the legally authorized government of the States then existing, or was there a revolution ? Was it set up by the people by a subversion and abandonment of their former government ?
To determine whether there was a revolution or not, let us inquire if any government was subverted in the formation of this Constitution, or whether its adoption was not a legal act, under the authority of the government or governments which then existed, and even now exist, and whether it be not a constitutional amendment of the pre-existent government and nothing more.
We have already stated what we consider a revolution. We know no other meaning attached to the term. By the thirteenth article of the Confederation of 1778, it was agreed by the States that
“ The articles of this Confederation shall be inviolably observed by every State; and the Union shall be perpetual; nor shall any
alteration at any time hereafter be made in any of them; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the Legislature of every State. And whereas, it hath pleased the great governor of the world to incline the hearts of the Legislatures we respectively represent in Congress to approve of, and to authorize us to ratify the said articles of confederation, know ye, that we, the undersigned delegates, by virtue of the power and authority to
us given for that purpose, do by these presents, in the name and in behalf of our respective constituents, (that is, the legislatures represented] fully and entirely ratify and confirm each and every of the said articles of confederation and perpetual union, and all and singular, the matters and things therein contained. And we do further solemuly plight and engage the faith of our respective constituents, that they shall abide by the determinations of the United States in Congress assembled, in all questions which by the said confederation are submitted to them; and that the articles thereof shall be inviolably observed by the States we respectively represeut, and that the union shall be perpetual.”
Here then was a union or perpetual confederation guaranteed by the Constitution to the different States, which clearly rebuts any indistinct idea of indivisibility or consolidation, which some modern politicians may attach to the word union. It can have no other meaning in our constitution, history and transactions than the word confederation ; and whatever subsequent constitutional modifications may have been given to the union, it is still a confederation of States, otherwise those modifications are in violation of that compact and void; or there has been a revolution and an entirely new government founded upon the wreck of that which pre-existed. This, we presume, cannot be pretended by any one, as it is surely and entirely contradicted by the whole constitutional history of this country, and especially by the events which led to the formation of the present Constitution, or rather amended confederation.
The first public recommendation of a general Convention of all the States for the purpose of amending the Confederation, was made by a partial convention of delegates from the States of Virginia, Maryland, Delaware, Pennsylvania, New-Jersey, and New-York, at Annapolis, in consequence of which, as early as the 16th of October, 1786, an act was passed by the General Assembly of Virginia, beginning in these words:
the commissioners who assembled at Annapolis on the 14th day of September last, for the purpose of devising and reporting the means of enabling Congress to provide effectually for the commercial interest of the United States, have represented the necessity of extending the revision of the federal system to all its defects, and have recommended that deputies for that purpose be appointed by the several Legislatures, to meet in convention, at Philadelphia, on the second day of May next, a provision, which was preferable to a discussion of the subject in Congress, where it might be too much interrupted by the ordinary business before them, and where it would besides be deprived of the valuable counsels of sundry individuals, who are disqualified by the Constitution or laws of the particular States, or restrained by peculiar circumstance from a seat in that assembly." And by this same act Commissioners were appointed for that purpose. - Jour. Conv. p. 56.
New Jersey was the next State to take up the matter, and on the 23d of November, 1786, the Counril and Assembly, at a joint meeting, appointed commissioners to assemble with such as might be appointed by the other States
" To take into consideration the State of the Union, as to trade and other important objects, and for the purpose of devising such other provision as shall appear to be necessary to render the Constitution of the Federal Government adequate to the exigencies thereof.”—Jour. Conv. p. 25.
Pennsylvania followed on the 30th of December, 1786, with an act declaring that the General Assembly
Weighing the difficulties under which the confederated States now labour, are fully convinced of the necessity of revising the Federal Constitution, for the purpose of making such alterations and amendments as the exigencies of our public affairs may require," and appointing commissioners for that purpose. --Jour. Conv. p. 28.
In North-Carolina, in January, 1787, an act of the General Assembly was passed for electing delegates
“For the purpose of revising the Federal Constitution, and to discuss and to decide upon the most effectual means to remove the defects of our Federal Union, and to procure the enlarged purposes which it was intended to effect; and that they report such an act to the General Assembly of this State, as when agreed to by them, will effectually provide for the same.
And under this act, their delegates were accordingly elected.—Jour. Conv. pp. 45–46.
In Delaware, on the 3d of February, 1787, an act of the Legislature was passed, nearly a copy of that of Pennsylvania, but with this proviso :
" That such alterations or further provisions, or any of them, do not extend to that part of the fifth article of the confederation of the said States, which declares that in determining questions in the United States, in Congress assembled, each State shall have one vote.'”—Jour. Conv.
In Georgia, on the 10th of February, 1787, an ordinance was passed by the General Assembly, appointing commissioners,
"To join in devising and discussing all such alterations and further provisions, as may be necessary to render the Federal Constitution adequate to the exigencies of the Union," &c.—with the usual clause for reporting such an act for that purpose to Congress for its assent, and to the States for their confirmation.Jour, Conv.
On the 21st of February, 1787, and four months after the passage of the act of the Virginia Assembly, the Congress of the United States made the first constitutional step towards the formation of our present Constitution, by the following resolution :
“Whereas there is provision in the articles of confederation and perpetual union, for making alterations therein, by the assent of a Congress of the United States, and of the Legislatures of the several States; and whereas, experience hath evinced that there are defects in the present confederation, as a mean to remedy which, several of the States, and particularly the State of New-York, by express instructions to their delegates in Congress, have suggested a convention for the purposes expressed in the following resolution ; and such convention appearing to be the most probable mean of establishing in the States, a firm national government,* Resolved, That in the opinion of Congress, it is expedient, that on the second Monday of May next, a convention of delegates, who shall have been appointed by the several States, be held at Philadelphia, for the sole and express purpose of revising the articles of confederation, and reporting to Congress and the several Legislatures, such alterations and provisions therein, as shall, when agreed to in Congress, and confirmed by the States, render the Federal Constitution adequate to the exigencies of Government, and the preservation of the Union.”—Jour. Conv. p. 5.
We think the meaning of these words too plain to be cavilled at. The object of the resolution was to perform a duty contemplated and permitted by the confederation, and in pursuance of the method prescribed by that compact. It will be observed, that in the above resolution, the terms Confederation," and the “Federal Constitution,” are used as synonimous terms, importing the same form of government by which * the Union” was established.
This resolution of Congress found Virginia, New Jersey, Pennsylvania, North-Carolina, Delaware and Georgia, prepared to go into the immediate discussion of the proposed amendment of the Confederation, as appears by the dates of the appointments of their commissioners above enumerated. The other States soon followed.
In New-York, on the 28th of February, 1787, delegates were appointed by a resolution of both Houses of the Legislature
“For the sole and express purpose of revising the articles of Confederation, and reporting to Congress and the several Legislatures, such
*. It will be seen by this resolution, that Congress then thought a “firm national government" not inconsistent with the articles of confederation, if revised and amended. Some people might say a man amended, is not the same man. VOL. II.-NO, 4.