by Conventions, and not by their Legislatures, should ratify the Constitution in order to make it binding upon all the people.1

Mr. Madison's wise and prudent counsel prevailed; the § 195.

ferring the plan to the Legisla

"Mr. Ellsworth

. . thought

1 Monday, July 23d, In Conven- tures. tion. The nineteenth Resolution (of more was to be expected from the Committee of the Whole) refer- the Legislatures than the people. ring the new Constitution to As-... The Legislatures were consemblies to be chosen by the people, sidered as competent.

for the express purpose of ratifying it, was next taken into consideration.

"Mr. Ellsworth moved that it be referred to the Legislatures of the States for ratification. Mr. Paterson seconded the motion.

"Colonel Mason considered a reference of the plan to the authority of the people, as one of the most important and essential of the Resolutions. Mr. Ran

"Mr. Williamson thought the Resolution (the nineteenth) so expressed, as that it might be submitted either to the Legislatures or to Conventions recommended by the Legislatures. He observed that some Legislatures were evidently unauthorized to ratify the system. He thought, too, that Conventions were to be preferred, as more likely to be composed of the ablest men in the States.

"Mr. Gouverneur Morris considered the inference of Mr. Ellsworth from the plea of necessity, as applied to the establishment of a new system, on the consent of the people of a part of the States, in favor of a like establishment, on the consent of a part of the Legislatures, as a non sequitur. If the Confederation is to be pursued, no alteration can be made without the unanimous consent of the Legislatures. Legislative alterations not conformable

dolph; It is of great importance, therefore, that the consideration of this subject should be transferred from the Legislatures, where this class of men (local demagogues) have their full influence, to a field in which their efforts can be less mischievous. It is moreover worthy of consideration, that some of the States are averse to any change in their Constitution, and will not take the requisite steps, unless expressly called upon, to refer the question to the Federal compact would to the people.

"Mr. Gerry

.

clearly not be valid. The Judges considered would consider them as null and void. Whereas, in case of an appeal to the people of the United States, the supreme authority, the Federal compact may be altered by a majority of them, in like manner as the Constitution of a particular State may be altered by a majority of the people of the State. The

the Confederation to be paramount to any State Constitution. The last Article of it, authorizing alterations, must consequently be so as well as the others; and every thing done in pursuance of the article, must have the same high authority with the article. "Mr. Gorham was against re-amendment moved by Mr. Ells

Constitution was sent to the Federal Congress with the request to have it ratified by Conventions of delegates chosen by the people of each State, but to be called by the respecworth erroneously supposes, that dangerous doctrine, that a Legislawe are proceeding on the basis of ture could change the Constitution the Confederation. This Conven- under which it held its existence. tion is unknown to the Confedera- There might indeed be some Contion. stitutions within the Union, which "Mr. King thought with Mr. Ells- had given a power to the Legisworth that the Legislatures had a lature to concur in alterations of competent authority, the acquies- the Federal compact. But there cence of the people of America in were certainly some which had not; the Confederation being equivalent and in the case of these, a ratificato a formal ratification by the tion must of necessity be obtained people. He thought with Mr. Ells- from the people. He considered worth, also, that the plea of neces- the difference between a system sity was as valid in the one case, as founded on the Legislatures only, the other. At the same time, he and one founded on the people, to preferred a reference to the author-be the true difference between a ity of the people expressly dele-league or treaty, and a Constitution. gated to Conventions, as the most The former, in point of moral oblicertain means of obviating all disputes and doubts concerning the legitimacy of the new Constitution, as well as the most likely means of drawing forth the best men in the States to decide on it. He re-fied by a pre-existing law might be marked that among other objec- respected by the Judges as a law, tions, made in the State of New though an unwise or perfidious one. York to granting powers to Con- A law violating a Constitution esgress, one had been, that such pow-tablished by the people themselves, ers as would operate within the would be considered by the Judges States could not be reconciled to as null and void. Secondly, the the Constitution, and therefore doctrine laid down by the law of were not grantable by the Legis- nations in the case of treaties is, lative authority. He considered it that a breach of any one article by as of some consequence, also, to get any of the parties frees the other rid of the scruples which some parties from their engagements. members of the State Legislatures In the case of a union of people might derive from their oaths to under one constitution, the nature support and maintain the existing of the pact has always been underConstitutions. stood to exclude such an interpre"Mr. Madison thought it clear tation. Comparing the two modes, that the Legislatures were incompe-in point of expediency, he thought tent to the proposed changes. all the considerations which recomThese changes would make essen-mended this Convention, in prefertial inroads on the State Constituence to Congress, for proposing the tions; and it would be a novel and reform, were in favor of State Con

gation, 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 rati

tive State Legislatures. The ratification, therefore, of the perfected work of the Constitutional Convention not only ventions, in preference to the Legis- | way be the deed of both. The forlatures for examining and adopting mer method, that the people of the it.

United States should ordain, and the States ratify, was adopted. For if it should be alleged at any future period that the American

"On the question on Mr. Ellsworth's motion to refer the plan to the Legislatures of the States, Connecticut, Delaware, Maryland, people had no national or organic aye-3; New Hampshire, Massa-existence, and that the States were chusetts, Pennsylvania, Virginia, the sole authors of the ConstituNorth Carolina, South Carolina, tion, and might undo what they Georgia, no-7.

had done, it would still be obvious that the States mutually agreed that such a people should be regarded as existing, and that the government should be treated as its handiwork, they would, on a well-known and familiar principle

"Mr. Gouverneur Morris moved, that the reference of the plan be made to one General Convention, chosen and authorized by the people, to consider, amend, and establish the same. Not seconded. "On the question for agreeing to which the law has derived from the nineteenth Resolution, touch-ethics, be precluded for all the puring the mode of ratification as re- poses of that government, from deported from the Committee of the nying what they had solemnly adWhole, viz., to refer the Constitu- mitted. I refer to the doctrine of tion, after the approbation of Con- estoppel, that what is held forth gress, to assemblies chosen by the as an inducement to others, shall people,-New Hampshire, Massa- not be retracted after they have chusetts, Connecticut, Pennsyl- acted on the faith of the assurance. vania, Maryland, Virginia, North The effect was to place the soverCarolina, South Carolina, Georgia, eignty of the new government on aye-9; Delaware, no-1." Madi- a basis which was as unalterable as son Papers, Vol. II, pp. 1177-1185. if the Conventions of the various 2 In his American Constitutional States had publicly proclaimed and Law, already referred to, Mr. Hare crowned a king. There are, as says, vol. I, pp. 89-91: "When the Mr. Madison contended in the reConvention met at Philadelphia, marks already cited, and as Jackthe people of the United States, not son insisted in his proclamation less than the people of the States, against nullification, grants which came through their agents, and must be irrevocable in order to atbeing present in both capacities, tain their object; and the establishmight determine in which they ment of a government is one of would act in framing the Consti- them. Whether the newly created tution. Whether it should be made sovereignty was vested in a comby the people of the United States monwealth or in a monarchy, it and sanctioned by the States, or would on every principle of namade by the States and sanctioned tional and public law have a claim by the people, might seem imma- to the allegiance of its subjects terial, because it would in either which it might enforce by arms.

assured its permanency but also its nationality and absolutely verified the preamble, "We, the people,” thus forever obviating all questions as to the increased authority of the Federal Government, as well as the additional limitations (Citing in a note United States vs. | the existing system of the Union Maurice, MARSHALL, Ch. J., 2 could be made to answer all reBrock, 96, p. 109, and Van Brock- quirements by distributing its lin vs. Temple, 117 U. S. 151, p. 154.) powers into the three departments "Established not by one, by two, of a legislative, an executive, and or by three of the States, but by a judiciary, without altering the the people of all the States, speak- principle which made the Union ing in their collective capacity as a close league between sovereign the people of the United States, states for certain purposes comthe union could not be dissolved mon to them all. But under this consistently with that well known principle there had been no mode maxim that the power which by which the legislative, the execbound is the only one that can un-utive, or the judicial powers could loose, unless all concurred, and be made to act directly upon indithen only because the concurrence viduals, whether those powers of the citizens of all the States in were vested in one body of men or such an act would, on a principle in several bodies. Nor had such a already stated, be in effect a renun- mode of action upon individuals ciation or abdication by the people been devised in any of the confedof the United States." eracies between different states, either in ancient or in modern times. It was found that in order to reach and introduce the princi"The reader who has followed ple of direct action upon the indime through the preceding volume vidual citizen, some means must has seen that at a very early period be discovered by which the powers in the deliberations of the conven- of the central government, whattion it was settled that the new ever they were to be, could be government must be divided into made supreme over the separate the three departments of the legis-powers of the states, in case of any lature, the executive, and the ju- conflict. To abolish the states, or dicial, and that it must be a national government. It may here be useful to condense into one statement what has already been given in greater detail in regard to the early distinction between a national' and a 'federal' government. It has appeared that many important members of the convention admitted at once the necessity for a more efficient government than that of the first Confederacy of the states, but they believed that

Mr. Curtis says in his Constitutional History of the United States, 2d Vol, pp. 115-116:

to fuse all the elements of political sovereignty into one mass, was out of the question. The convention was not assembled and had not been instituted with any design or expectation that the people of the states would merge themselves in one national democracy, or deposit the whole of their respective sovereignties in the hands of a central government of any form or description."

upon State Sovereignty, and making the Constitution, the laws of the United States, and all treaties made under their authority, the supreme law of the land and absolutely binding not only on the judges, as expressed in the Constitution, but also upon all the inhabitants of all the States.

$196. Results of the Convention; Washington's meditation. But whether the members of that Convention themselves knew what they had accomplished will never be known. Perhaps some of them thoroughly appreciated that they had laid the foundations of a Nation, perhaps others felt that the State life had been preserved to the exclusion of all centralization. Bancroft declares the members were awe-struck at the result of their councils; the Constitution was a nobler work than any one of them had believed it possible to devise, and he adds that they all dined together, and took a cordial leave of each other; a single line in that summary of the day's work contains a wondrous world of thought. "Washington," he says "retired at an early hour of the evening to meditate on the momentous work which had been executed." That great man well knew that the sun carved upon the back of the chair which he had occupied during those long sessions, and which had been so effectively used as a simile by Doctor Franklin at the close of the final session, not only was a rising and not a setting sun,2 but that it was rising upon a nation that, through the efforts of men who, like himself, had buried all local selfishness in the noble efforts they had made during the past months, was fully endowed with every attribute of nationality and sovereignty which would enable it ere the close of

See opinions of Supreme Court as to the nature of the ratification of the Constitution cited, and quoted from, in § 27, pp. 47 et seq. ante.

§ 196.

1 Bancroft's History of the Corstitution of the United States, 6th Edition, New York, 1893, vol. 2, p. 222.

2 "The Constitution being signed by all the members, except Mr.

Randolph, Mr. Mason and Mr. Gerry, who declined giving it the sanction of their names, the Convention dissolved itself by an adjournment sine die.

"Whilst the last members were signing, Doctor Franklin, looking towards the President's chair, at the back of which a rising sun happened to be painted, observed to a few members near him, that painters had found it difficult to