not be foretold. Certainly if such an attempt were now made, despite of the last clause we have cited from the present Constitution, it would produce an immediate revolution, and perhaps a total dissolution of the Union. So much for the value of experience. If there was any force in the argument of Mr. Everett against the constitutionality of altering the Constitution itself in any of its fundamental principles, even in the manner prescribed for alteration, how much more must there be in this alteration of the Constitution, contrary to the manner prescribed by that Constitution.* In short, we think that in ratifying the amended Constitution, the same language used upon confirming the old Constitution, might have been appended by Congress as a codicil. "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 authorise us to ratify the said articles of Confederation and perpetual Union: Now 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, fully and entirely ratify the said articles of Confederation and perpetual Union, &c."

It will be observed, as we have said before, that in the Resolution of the old Congress, proposing a Convention of States to alter the Constitution, that the terms "Confederation" and "the Federal Constitution" are used as synonimous terms. The word "Union" was used then as now; so of the words "United States." It will likewise be seen by reference to the various commissions granted by the Legislatures to their delegates in the Convention, that the words "States" and "State Legislatures" were also used indiscriminately. (See Jour. Conv. passing from p. 5 to 58.)

It will not be denied that the old Congress represented the State Legislatures. It is so expressly stated in the last clause of the Constitution of 1778, and indeed throughout the thirteenth article, as well as in the resolution of Congress of the 21st of February, 1787, proposing the Convention, wherein the words "Legislatures" and "States" are likewise used synonimously, (Jour. Conv. p. 19) as in the 13th article of the Confederation.

The Constitution of 1778, required that amendments should also be agreed to in Congress as well as in the State Legislatures. To avoid the trouble, and for the purpose of obtaining the aid of many who could not appear on the floor of Congress,

*

Speech on Mr. M'Duffie's resolutions for altering the Constitution as to the mode of electing a President.

that body itself proposed the substitution of a Convention to do its work, and afterwards to receive its report, subject to their approval or rejection. The State Legislatures did nothing more when they sent down the proposed Constitution to be discussed in Conventions. They might have refused the intervention of such bodies, but to obtain the greater surety of its popularity, they ordered it to be considered by Conventions of delegates, to be elected for that express purpose. Qui facit per alium facit per se.

After all, what difference, we will not say essential, but what practical distinction of any importance can arise from the mode in which the Constitution was finally ratified. The delegates to the Federal Convention were, as we have seen, appointed by the Legislatures of the separate States. The Constitution was submitted by the same bodies to the Conventions, by which it was finally ratified.

Let us for a moment suppose that the Legislature of any State had refused to refer the Constitution to a Conventionwhat would have been the result? If a majority of the people acquiesced in the decision of the Legislature, the rejection by the Legislature would have been final. If a majority had differed from the Legislature, what would have been their course? To call of themselves a Convention? Certainly not, there was no existing authority to take that step, and to make the preliminary arrangements. The people would have changed their Legislature at the next election, and that renovated body would then have called a Convention. It was through their Legislatures that the people would have acted.

Let us suppose further, that the Legislatures of any States, after receiving the Constitution, instead of referring it to a Convention had proceeded to ratify the instrument, or had referred it to a succeeding Legislature after a new election-would the ratification then have been less valid-the sanction and obligation less binding? The reference to a Convention was not even made a part of the Constitution, it was merely a recommendation of the general Convention, to give, as they perhaps supposed, more popularity-more solemnity to the measure. It was adopted out of respect to the body who recommended it; but, after all, it was a form merely, not a substantial part of the compact, and of this no other proof is necessary than that the Legislatures now possess the power without any reference to Conventions to amend, alter, derange and destroy this very instrument whenever a certain number shall consider it expedient to do so.

Need we go further to prove that this mode of ratification was a mere form, a reference by certain individuals of a grave ques

For it will surprise no one

tion from themselves to themselves. to be informed that the Conventions, when summoned, were composed in a great measure of the very persons, who as members of the Legislature, issued the summons. Some of the Judges, in each State, who could not hold seats in the Legislature were introduced into the Convention. A few venerable old men who had retired from active life, were again brought forward, and, in a few instances, some clergymen took a part in the proceedings-but the great majority, three-fourths, perhaps nine-tenths of each Convention, was composed of the very individuals who acted as legislators in the State Governments. The public will, if the question had been referred to a subsequent Legislature, would have been as distinctly and as authoritatively expressed as by a Convention.

The Legislatures, therefore, by referring the Constitution Conventions, gave their affirmance to it; by refusing that reference they might and would have placed their negative upon it.

But further, by the first clause of the fifth article of the present Constitution, provision is made for amendments whenever they may be proposed, either by Congress or by two-thirds of the "Legislatures of the several States," and such amendments are required "to be 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.'

In the second clause of the first section of the second article, as to the election of President, it provides that "each State shall appoint, in such manner as the Legislature thereof may direct, a number of electors," &c.

In the third clause of the same section and article, it provides, in case the election comes before the House of Representatives, that "in choosing the President, the votes shall be taken by States, the representation from each State having one vote.

By the first clause of the fourth section of the first article, "the times, places, and manner of holding elections for senators and representatives, shall be prescribed in each State by the Legislatures thereof; but the Congress may, at any time, by law, make or alter such regulations, except as to places of choosing senators."

By the first clause of the third section of the first article, "the Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof," &c. and, by the second clause, if a vacancy occurs during the recess VOL. II. NO. 4.

57

of the Legislature, "the Executive thereof may make temporary appointments until the next meeting of the Legislature, which shall then fill such vacancies."

By the seventeenth clause of the eighth section of the first article, "Congress may exercise jurisdiction over all places purchased, by the consent of the Legislature of the State in which the same shall be," &c.

So by the fourth section of the fourth article, a Republican form of Government is guaranteed to each State, &c. “and on application of the Legislature, or of the Executive, (when the Legislature cannot be convened) they are guaranteed against domestic violence."

We have never yet seen it denied that the Senate of the United States represented the State Legislatures.

After this minute examination into the formation of the Constitution of the United States, we think it must be evident, to any one not prejudiced by party feelings, or professional opinions, that the compact is one between States (thereby meaning the Constitutional Government of such States) and not a form of Government established immediately by the people of the territory over which it extends; or rather that it still remains as at first, a Confederation of State Governments, which State Governments immediately hold from the people. And moreover, that in almost every instance, the Legislatures of the States have been throughout the transactions, and even in the Constitution itself, regarded as the constituents which that Government represents.

We take it for granted that we have made out the position that the present Constitution was established not by a revolution, but by a legal mode of enactment, provided by the Constitution itself, for amendments of its own provisions. We shall take it also for granted, that without a revolution, a mere amendment cannot be said to extinguish the fundamental principles of the government, for this can alone be effected by a revolution—and, that the mere extension of the means of carrying more fully into operation the former powers of the Constitution, formed by a confederation of States, cannot, by any authorized mode of construction, be considered as a change of the federative nature of the alliance; nor can a consolidated government be implied from the fact of there being but one set of officers to enforce the laws of the Federal Union. We have clearly shewn that throughout the Constitution, the Legislatures of the different States, as representing the sovereignties of those States, are regarded as the constituents and as the contracting powers. The Old Articles of Confederation, as they are commonly called, but which

in fact should be called our first Constitution, expressly states, that Congress represented the Legislatures of the States. They, in their turn, represented the people; and it was only through them (the Legislatures) that any means could be obtained to communicate with, or to operate on the people. That was at last obtained by their permission-by the express terms of the Constitution, it could not be done otherwise. The permission on the part of the State Governments, that the delegates for the lower House should be immediately elected by the people, proves nothing more than that the State Governments had the right to restrain that permission. It was, to be sure, the will of the people; but it was the legitimate voice of the people heard through their legally authorized government; and until that form of government was changed, no voice of the people could be said to be heard but through the organs which they themselves had declared should alone convey their will. To deny this, would be to deny every obligation of obedience to the laws, and it would sap the very power of the people, in abstracting from them the right of declaring through what constitutional organs their sentiments should be uttered. According to the first clause of the ninth article of the Constitution of SouthCarolina, "All power is originally vested in the people; and all free governments are founded on their authority, and are instituted for their peace, safety and happiness." Here it will be plainly seen that the Constitution recognises the difference between the original power being in the people, and that power being in a free government founded on their authority. Whilst a free government founded on that authority exists, all power is in that government, and it represents the sovereignty of the people. Otherwise, every individual might claim his share of the sovereignty. The highest tribunal of justice in South-Carolina has, upon this point, given an important opinion. When speaking of the "eminent domain," Judge Nott, in the case of Dunn vs. the City Council,* remarks-" This power, I have already said is an essential attribute of sovereignty. Wherever the sovereign power is lodged, that constitutes a part. In South-Carolina, I think, it is lodged in the legislative body, which consists of a Senate and House of Representatives. The Legislature, therefore, possesses all the power which the people themselves possess, where it is not restricted by the Constitution, and where the power is not delegated to any other branch or department of the Government."

Harper's Law Reports, p. 196.