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alterations and provisions therein, as shall, when agreed to in Congress and confirmed by the several States,* render the Federal Constitution adequate, &c." Jour. Conv. p. 22.
In South-Carolina, on the 8th of March, 1787, an act of the General Assembly was passed, for electing delegates to the Convention
“ For the purpose of revising the Federal Constitution"_"and in devising and discussing all such alterations, clauses, articles and provisions, as may be thought necessary, to render the Federal Constitution entirely adequate to the actual situation and future good government of the Confederated States," with the usual clause, requiring it to be approved of by Congress and confirmed by the States."
In Massachusetts, on the 9th of April, 1787, the commission of the governor to their delegates states, that
“Whereas Congress did, on the 21st day of February, 1787, resolve, that in the opinion of Congress, it is expedient that on the second Monday in 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. And whereas, the General Court have constituted and appointed you their delegates, to attend, &c.--and have, by a violation of their's of the 10th of March last, requested me to commission you for that purpose-Now, therefore, &c.” Jour. Conv, p. 19.
In Connecticut, the Legislature in May, 1787, passed an act for appointing delegates, &c. to meet others appointed by the several States,
“For the sole and express purpose of revising the Articles of Confederation,” and “to discuss upon such alterations and provisions agreeable to the principles of Republican Governments, as they shall think proper to render the Federal Constitution adequate to the exigencies of Government, and the preservation of the Union; and to report such alterations and provisions to the Congress of the United States, &c. and to the General Assembly of the States.”—Jour. Conv. p. 20.
In Maryland, on the 26th of May, 1787, an act of the Legislature was passed, appointing and conferring powers on their deputies,
“For the purpose of revising the federal system, and to join in considering such alterations and further provisions as may be necessary to
* This must mean Legislatures of the several States, or why refer it to them as above. This is not the only instance in which the words “ States” and “Legislatures" are used synonimously,
render the Federal Constitution adequate, &c. as when confirmed by the several States, will effectually provide for the same.”—“ And the said deputies are her by directed to report the proceedings of the said Convention, and any act agreed to therein, to the next session of the General Assembly of this State."'*—Jour, Conv. p. 34.
In New-Hampshire, on the 27th June, 1787, it was enacted by the Senate and House of Representatives, in General Court convened,
“That John Langdon, &c. be hereby appointed commissioners, &c. to meet deputies from the other States in Convention, to discuss and decide
upon the most effectual means to remedy the defects of our federal union, &c., and io report such an act to the United States in Congress, as when agreed to by them, and duly confirmed by the several States, will effectually provide for the same.”—Jour. Conv. p. 17.
Rhode Island appointed no delegates.
On the 25th of May, 1787, the Convention met, and agreed to our present Constitution, except as to the amendments since made. It adjourned on the 17th of September, 1787.
It is not our object here to detail any opinions or propositions entertained or proposed in that body. It is sufficient for our views to shew how this Convention was constituted. We have seen that it was expressly called by authority of the provision in the thirteenth article of the Confederation or Constitution of 1778. It will also be recollected that in that article it was provided that no alteration should ever be made in that Constitution, "unless such alteration be agreed to in a Congress of the
* Much to our surprise we have seen and heard severe animadversions upon the conduct of Mr. Martin, for making those disclosures to the Maryland Legislature, which it was his bounden duty to make for the information of his constituents.-This disposition to find fault proceeds from the aptness with which men listen to party representations; and from the circumstance that they so rarely investigate a question thoroughly and accurately, before they form their opinions. This we should think the besetting sin of modern politicians, except that we suspect it has always been so.
In the act of the Legislature of Maryland, appointing deputies to the Convention at Philadelphia. for the formation of the Constitution, under which Luther Martin was nominated, it is expressly ordered—and the said deputies are hereby directed to report the proceedings of the said Convention, and any act agreed to therein, to the next Session of the General Assembly of this State.”—Jour. Conv. p. 35.
We should be glad to know whether Mr. Martin was bound by the express language of his appointment, or by the abstract notions of honor which a half-informed gentleman may choose to entertain of the matter. Were not the credentials of the members submitted to the Convention? The credentials, all of them, recited the substance, and in this instance, the language of the Legislature, in making the appointment. It was a restricted power of attorney, and it would have been mala fides “to have acted against his express instructions."
United States, and be afterwards confirmed by the Legislatures of every State.”
On the 12th of September, 1787, the Convention, after agreeing to the form of the Constitution, likewise adopted the form of a letter, to be addressed to "the United States in Congress assembled," and with it to submit the Constitution they had agreed to. In this letter, it is said,
“ And thus the Constitution which we now present, is the result of a spirit of amity, and of that mutual deference and concession, which the peculiarity of our political situation rendered indispensable.” Jour. Conv. p. 368.
On the 28th of September, 1787, Congress upon receiving the report of the Convention, ordered the same to be transmitted to the Legislatures of the several States, and by them they were submitted to the consideration of the people in convention at the request of Congress, by different acts these Legislatures passed for that purpose.
But, by the thirteenth article of the Confederation, it was expressly agreed, that “the Union shall be perpetual ; nor shall any alteration, at any time hereafter, be made in any of them (the articles) unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the Le. gislature of every State.”
By this article, it must be apparent to every lawyer, that the present Constitution is but a mere nullity, if it has not received the confirmation of the Legislature of every State belonging to the Confederation at that time; and it is equally evident that the Constitution did receive the sanction and confirmation of the different Legislatures in every legal sense of the word, when they received the report of the same from Congress, and substituted Conventions to assent to it, thereby consenting to, and confirming the acts of such convention. We take it for granted that no lawyer will doubt the correctness of this construction ; for, in the year 1778, the last clause of the Confederation recites, that "Whereas it has 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, &c.” thereby expressly shewing that the Legislatures had before, and could again give their act of confirmation by proxy, through the instrumentality of a Convention, called by themselves for that purpose ; and, that in these Conventions, the Legislatures were represented to all legal intents and
The amended Constitution was confirmed by the different States in the following order :
Delaware, on the 7th of Dec. 1787 | South-Carolina, on the 23d of May, 1788 Pennsylvania, 12th of Dec. 1787 New Hampshire, 21st of June, 1788 New Jersey, 18th of Dec. 1787 | Virginia,
26th of June, 1788 Georgia, 2d of Jan. 1788 | New-York,
26th of July, 1788 Connecticut,
9th of Jan 1788 | North-Carolina, 21st of Nov. 1789 Massachusetts, 6th of Feb. 1788 Rhode-Island, 29th of May, 1790 Maryland,
28th of Apr. 1788 |
By the Confederation between the thirteen States, we have seen that no alteration could be made without the consent of them all. But, by the last clause in the new Constitution, it was agreed, that
“ The ratification of the Conventions of nine States shall be sufficient for the establishment of this Constitution between the States to ratify the same." Art. 7. Sec. 1.
New Hampshire made the ninth State. The ratification of that State was received by Congress on the 2d of July, 1788, and on that day Congress proceeded to consider the ratification of the Constitution, and an act to put it into operation. On a motion to refer it to a committee, we are surprised to find Virginia and New-York States, which had not yet confirmed the Constitution, voting-Virginia in favour of the measure, and New-York equally divided. North-Carolina was not present, and Rhode Island was excused from voting. On the 14th of July, the committee reported an act for putting the Constitution into operation, which was debated until the 13th of September, when a resolution was passed for appointing a time for elections; and on the 4th of March, 1789, proceedings commenced under the Constitution. (Jour. Conv. p. 451.) It was not until the 11th of January following, that the ratification by North-Carolina was communicated to Congress, and on the 16th of June, that of Rhode Island.
It may well excite some surprise that the new Government should have gone into operation without requiring the assent of every State, according to the provisions of the former Confederation. The consent of every State was, in truth, soon obtained, and removed the unpleasant difficulties that might have ensued. The first clause of the fifth article of the amended Constitution, provides that—"The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution; or, on the application of the Legislatures of two thirds of the several States, shall call a Con
vention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided, that no amendment which may be made prior to the year one thousand eight hundred and eight, shall, in any manner, affect the first and fourth clauses in the ninth section of the first article: and that no State, without its consent, shall be deprived of its equal suffrage in the Senate.”
Now, let us suppose, for instance, that, at present, any attempt were made to alter this Constitution, by any other means than those proposed in this clause, and that without the consent of two thirds of the States, the majority should agree to an alteration of the Constitution, or that the equality of votes in the Senate should be taken from any State, without its consent, or that the first and fourth clauses in the ninth section of the first article had been altered before the year one thousand eight hundred. and eight, and that the importation of slaves had been prohibited, or that a capitation or other direct tax had been laid, not in proportion to the census, &c., what would have been thought of such an alteration ? No doubt that it was a gross violation of the Constitution, and void. Could any Court, or even a Legislative body have held otherwise ? Was not the obligation of the Constitution of 1778 as sacred as that of 1787? No lawyer or statesman would dare risk his reputation by denying the exact similitude of the cases, and the unquestionable inference, that such an alteration, in violation of the Constitution, was equaily void in both instances; and nothing could have saved us from this sad dilemma, which must have arisen sooner or later, if the thirteen States of the old Confederation, had not, all of them on the 16th of June, 1790, or rather on the 29th of May, 1790, the date of the ratification of Rhode Island, agreal to the amendment. It is unnecessary now to consider the validity of the elections, and of the acts passed previously to that time: and whether by the doctrine of relation they were not rendered valid ab initio, by the subsequent assent of the States which legalized the Constitution, and thereby the prior acts of the Government de facto.* In new governments this experiment may pass over without mischief, but if attempted under a government which has been any length of time in operation, with its principles well understood, the disastrous consequences could
* We do not know whether this ground was taken in the debates of Congress, in relation to the ratification of the Constitution. Those debates have never been published, as we know of, which is much to be regretted.