PROVISIONS FOR AMENDING CONSTITUTION. that the provision requiring a navigation act to be passed by a vote of two thirds should be stricken out.* This recommendation was changed in only two respects: the duty on imported slaves being fixed at $10 and the limit of importation being changed from 1800 to 1808.† In this form the compromise was passed by a vote of seven States (New Hampshire, Massachusetts, Connecticut, North Carolina, South Carolina, and Georgia) against four (New Jersey, Pennsylvania, Delaware, and Virginia). Thus was accomplished a compromise which gave to the general government its control over the com * Ibid, p. 241. 491 mercial relations of the States with foreign nations and with each other. Having now compromised the chief points on which disputes arose, it remained only to guarantee to every State a republican form of government, to protect the States from foreign invasion and domestic violence, and to determine the mode of amending and ratifying the Constitution. The original Confederation was made incapable of alteration except by the unanimous assent of the States, and it was felt that this should be changed. The committee of detail was therefore instructed to incorporate a provision for amending the Constitution whenever it should seem necessary. In their first draft, there Madison said: "Twenty years will produce all the mischief that can be apprehended from fore, the committee provided that, the liberty to import slaves. So long a term will be more dishonorable to the American character than to say nothing about it in the Constitution."- Gilpin, Madison Papers, vol. ii., p. 1427. See also Madison's Works (Congress ed.), vol. iii., p. 149 et seq. Hunt, Madison's Journal, vol. ii., pp. 250-251; Curtis, Constitutional History, vol. i., pp. 510511; Hunt's ed. of Madison's Writings, vol. iv., pp. 292, 303, 306; Thorpe, Story of the Constitution, pp. 137-138; Hunt, Life of Madison, pp. 125–126. Pinckney summed up the result of this compromise to his constituents as follows: "By this settlement we have secured an unlimited importation of negroes for twenty years; nor is it declared that the importation shall be then stopped; it may be continued. We have a security that the general government can never emancipate them, for no such authority is granted. We have obtained a right to recover our slaves, in whatever part of America they may take refuge, which is a right we had not before. In short, considering all circumstances, we have made the best terms, for the security of this species of property, it was in our power to make. We would have made better if we could, but on the whole I do not think them bad."- Gay, Life of Madison, pp. 108-109. VOL. III 32. "on the application of the legislatures of two thirds of the States in the Union, for an amendment to this Constitution, the legislature shall call a convention for that purpose (art. xix.), but this article did not state whether the legislature should propose amendments to be adopted by the Convention, or whether the Convention should both propose and adopt them, or only propose amendments to be adopted by some other body. As this was very indefinite and inadequate, Madison introduced a substitute method (now the fifth article of the Constitution) providing that Congress, whenever two thirds of both Houses should deem it necessary, should propose amendments, or upon the application of two 492 AMENDING POWER RESTRICTED; METHOD OF RATIFICATION. thirds of the State legislatures should call a convention for proposing amendments, these amendments to become valid as part of the Constitution when ratified by the legislatures of three fourths of the States, or by conventions in three fourths of the States.* This power of amendment was limited in some respects. It will be remembered that the States were allowed to import slaves up to the year 1808 and that Congress could not lay a capitation or other direct tax, unless in proportion to the census or enumeration of the inhabitants of the States in which only three-fifths of the slaves were included. It will be remembered also that the smaller States had long and finally successfully contended for equal representation in the Senate. Mr. Rutledge of South Carolina therefore moved a proviso which forbade any amendment to the clauses regarding slave trade and capitation or other direct taxes, and Mr. Sherman of Connecticut moved that no State should be deprived of its equality of representation in the Senate without its consent. Both amendments were approved by the Convention.+ The other question to be determined was: Should the Constitution go into operation at all unless adopted by all the States, and if so, what number of * Hunt, Madison's Journal, pp. 339 et seq., 384 et seq. Bancroft, vol. vi., pp. 363-364; Curtis, Constitutional History, vol. i., pp. 613-616; Fiske, Critical Period, p. 268 et seq. States should be necessary to effect its establishment? The committee of detail had declared that the Constitution must first be submitted to the approbation of the existing Congress and then to assemblies of representatives to be recommended by the State legislatures to be expressly chosen by the people to consider and decide upon it. But this did not state what disposition was to be made of those States that should reject it. Would it be possible for some of the States to withdraw from the Confederation and establish for themselves a new general government, or should the ratification by a majority of the States establish the Constitution and so bind the minority? It appeared clear that, if a unanimous adoption were required, the labors of the Convention would be defeated. Rhode Island had taken no part in the Convention; New York was not represented for several weeks; and the majority of the other delegates had declared themselves opposed to it; and Luther Martin of Maryland predicted that his State would reject it. Under these circumstances, a unanimous requirement would have been fatal to the experiment of creating a new government. It was therefore decided that the ratifications of the conventions of nine States should be sufficient to establish the Constitution between the States that might so ratify it. New Hampshire, Massachusetts, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, THE CONSTITUTION ENGROSSED AND SIGNED. and Georgia voted in the affirmative and Virginia, North Carolina, and South Carolina in the negative regarding the number of States necessary.* Having now determined upon the articles, a committee was appointed on September 8, consisting of Johnson, Hamilton, Gouverneur Morris, Madison, and King "to revise the style of and arrange the articles agreed to by the House." On the 12th this committee reported a revised draft of the Constitution, the text of which owes its luminous order to the great mind of Gouverneur Morris. The Constitution was then engrossed and, having been signed by all but sixteen dissenting members, the Convention adjourned on September 17. As an example of Franklin's tact, Madison said that at the * Curtis, Constitutional History, vol. i., PP. 617-621; Hunt, Madison's Journal, vol. ii., pp. 284-288, 342-346, 368-369. Bancroft, vol. vi., pp. 292-356; Hunt, Madison's Journal, vol. ii., p. 338. See his Life by Jared Sparks, vol. i., p. 284; also Madison's letter of April 8, 1831, to Jared Sparks, in Madison's Works (Congress ed.), vo1 iv., p. 169. For his attitude on the various point 3 at issue, see Roosevelt, Gouverneur Morris, pl. 133-166. For text, see Thorpe, Federal and Stare Constitutions, vol. i., pp. 19-35; Taylor, Origin and Growth of the American Constitution, App. xviii.; Hunt, Madison's Journal, vol. ii., pp. 348359, 398-414; Curtis, Constitutional History, vol. i., pp. 728-745. See also Appendix ii. at the end of the present chapter. Schouler, United States, vol. i., p. 52; McLaughlin, The Confederation and the Constitution, p. 272. For Franklin's speech, see Thorpe, Story of the Constitution, p. 139 et seq.; Hunt, Madison's Journal, vol. ii., pp. 389-391, and for the reasons of some of those who refused to sign, p. 393 et seq. 493 close of the Convention, while the members were signing the Constitution, Franklin pointed to a sun painted on the back of the president's chair, and remarking with a smile. that painters had often found it difficult to distinguish a rising from a setting sun, he said: "I have often and often, in the course of the session, and the vicissitudes of my hopes and fears as to its issue, looked at that sun behind the president, without being able to tell whether it was rising or setting. But now, at length, I have the happiness to know that it is a rising and not a setting sun."* A few days before the Convention adjourned, the draft of a letter to Congress was prepared by Washington, submitted to the Convention and adopted,† and after the Constitution had been signed it was transmitted to Congress in this letter, which was as follows: "IN CONVENTION, Sept. 17, 1787. "SIR,- We have now the honor to submit to the consideration of the United States, in Congress assembled, that Constitution which has appeared to us the most advisable. "The friends of our country have long seen and desired, that the power of making war, peace and treaties; that of levying money, and regulating commerce, and the correspondent executive and judicial authorities, should be fully and effectually vested in the general government of the Union but the impropriety of delegating such extensive trust to one body of men is evident. Hence results the necessity for a different organization. *Parton, Life of Franklin, vol. ii., pp. 581582; Morse, Life of Franklin, p. 405; McMaster, United States, vol. i., p. 453. See Hunt, Madison's Journal, vol. ii., PP. 360 361. 494 WASHINGTON'S REPORT TO CONGRESS; IMPORTANT OMISSIONS. "It is obviously impracticable in the federal government of these states, to secure all the rights of independent sovereignty to each, and yet provide for the interest and safety of all. Individuals entering into society, must give up a share of liberty, to preserve the rest. The magnitude of the sacrifice must depend, as well on situation and circumstance, as on the object to be obtained. It is at all times difficult to draw with precision the line between those rights which must be surrendered, and those which may be reserved; and, on the present occasion, this difficulty was increased by a difference among the several states, as to their situation, extent, habits, and particular interests. "In all our deliberations on this subject, we kept steadily in our view, that which appears to us the greatest interest of every true American, the consolidation of our Union, in which is involved our prosperity, felicity, safety, perhaps our national existence. This important consideration, seriously and deeply impressed on our minds, led each state in the Convention to be less rigid on points of inferior magnitude, than might have been otherwise expected, 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. "That it will meet the full and entire approbation of every state, is not perhaps to be expected: but each state will doubtless consider, that had her interests alone been consulted, the consequences might have been particularly disagreeable or injurious to others: that it is liable to as few exceptions as could reasonably have been expected, we hope and believe; that it may promote the lasting welfare of that country so dear to us all, and secure her freedom and happiness, is our most ardent wish. "With great respect we have the honor to be, Sir, your Excellency's most obedient and humble Servants. "GEORGE WASHINGTON, "President. "By unanimous Order of the Convention. "HIS EXCELLENCY THE PRESIDENT OF CONGRESS." One or two omissions in the Constitution should be noted. There is no specific grant of power to the national government to coerce a rebellious State; nor is anything said as to the right of a State to secede. The Convention framed a Constitution by the adoption of which thirteen peoples, believing themselves independent and sovereign, in reality acknowledged themselves to be but parts of a single political whole.* If the Constitution had contained the above provisions, if it had definitely stated that by adopting it the sovereignty of the nation would be acknowledged, and that no part or parts could sever connection from the rest without the consent of the whole, probably every State in the Union would have rejected it. These omissions may be called a compromise between State sovereignty and nationalism. Without these compromises, the Constitution would not have been adopted, but it is important to note that all of them proved to be denationalizing forces, nationalizing forces, "they tended to perpetuate that feeling of separateness and isolation, that state selfishness or state patriotism, the prevalence of which made the period between 1783 and 1787 a dangerous critical period in American history." These compromises at various times seriously threatened the very existence of the Union, and men *Writing to Jefferson October 24, 1787, Madison says: "It was generally agreed that the objects of the Union could not be secured by any system founded on the principle of a confederation of Sovereign States. A voluntary observance of the federal law by all the members could never be hoped for."-Madison's Works (Congress ed.), vol. i., p. 344. Gordy, Political History of the United States, vol. i., p. 80. THE RIGHT TO SECEDE. both North and South thought the States possessed the right to withdraw from the Union whenever they saw fit. At the time of the adoption of the Constitution Virginia went so far as to state that "the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression," and that "every power not granted thereby remains with them and at their will." Rhode Island declared that the powers of government may be resumed by the people whensoever it shall become necessary to their happiness." Daniel Webster, in a speech at Capon Springs, Va., in 1851 said: * * "How absurd it is to suppose that when different parties enter into a compact for certain purposes, either can disregard any one provision, and expect, nevertheless, the other to observe the rest. I have not hesitated to say, and I repeat, that if the Northern States refuse wilfully and deliberately to carry into effect that part of the Constitution which respects the restoration of fugitive slaves, and Congress provide no remedy, the South would no longer be bound to observe the compact. A bargain cannot be broken on one side and still bind on the other side. I say to you, gentlemen in Virginia, as I said on the shores of Lake Erie and in the city of Boston, as I may say again in that city or elsewhere in the North, that you of the South have as much right to receive your fugitive slaves as the North has to any of its rights and privileges of navigation and commerce. I am as ready to fight and fall for the constitutional rights of Virginia as I am for those of Massachusetts." Jefferson Davis expressed the sentiment of the South on January 21, 1861, when he rose in the Senate to resign his seat in that body: "I rise, Mr. President, for the purpose of an - * 495 nouncing to the Senate that I have satisfactory evidence that the State of Mississippi by a solemn ordinance of her people, in convention assembled, has declared her separation from the United States. * If it be the purpose of gentlemen, they may make war against a State which has withdrawn from the Union; but there are no laws of the United States to be executed within the limits of a seceded State. A State, finding herself in the condition in which Mississippi has judged she is in which her safety requires that she should provide for the maintenance of her rights out of the Union — surrenders all the benefits (and they are known to be many), deprives herself of the advantages (and they are known to be great), severs all the ties of affection (and they are close and enduring), which have bound her to the Union; and thus divesting herself of every benefit-taking upon herself every burden she claims to be exempt from any power to execute the laws of the United States within her limits. * We recur to the principles upon which our government was founded; and when you deny them, and when you deny the right to us to withdraw from a government which, thus perverted, threatens to be destructive of our rights, we but tread in the path of our fathers when we proclaim our independence and take the hazard." * * * Horace Greeley stated in the New York Tribune, November 9, 1860, that the right to secede may be a revolutionary one, but it exists nevertheless." The New York Herald, an independent journal, said on November 25, 1860: "Coercion in any event is out of the question. A Union held together by the bayonet would be nothing better than a military despotism." And again: "Each State is organized as a complete government, holding the purse and wielding the sword, possessing the right to break the tie of the confederation, *See The South in the Building of the Nation, vol. ix., pp. 412-417, where the entire speech is given. |