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 1 Monday, July 23d, In Conven- tures. tion. The nineteenth Resolution (of the Committee of the Whole) referring the new Constitution to Assemblies to be chosen by the people, 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. Randolph; 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 people. "Mr. Ellsworth thought more was to be expected from the Legislatures than the people. The Legislatures were con sidered as competent. "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 to the Federal compact would clearly not be valid. The Judges "Mr. Gerry considered would consider them as null and the Confederation to be paramount void. Whereas, in case of an apto any State Constitution. The last peal to the people of the United Article of it, authorizing altera- States, the supreme authority, the tions, must consequently be so as Federal compact may be altered by well as the others; and every thing a majority of them, in like manner done in pursuance of the article, as the Constitution of a particular must have the same high authority State may be altered by a majority with the article. of the people of the State. The "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 had given a power to the Legislature to concur in alterations of the Federal compact. But there were certainly some which had not; and in the case of these, a ratification must of necessity be obtained from the people. He considered the difference between a system founded on the Legislatures only, and one founded on the people, to be the true difference between a The former, in point of moral obligation, 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 "Mr. King thought with Mr. Ellsworth that the Legislatures had a competent authority, the acquiescence of the people of America in the Confederation being equivalent to a formal ratification by the people. He thought with Mr. Ellsworth, also, that the plea of necessity was as valid in the one case, as the other. At the same time, he preferred a reference to the authority of the people expressly dele-league or treaty, and a Constitution. gated to Conventions, as the most certain 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 objections, made in the State of New York to granting powers to Congress, one had been, that such pow-tablished by the people themselves, ers as would operate within the States could not be reconciled to the Constitution, and therefore were not grantable by the Legislative authority. He considered it as of some consequence, also, to get rid of the scruples which some members of the State Legislatures might derive from their oaths to support and maintain the existing Constitutions. "Mr. Madison thought it clear that the Legislatures were incompetent to the proposed changes. These changes would make essential inroads on the State Constitutions; and it would be a novel and respected by the Judges as a law, though an unwise or perfidious one. A law violating a Constitution es would be considered by the Judges as null and void. Secondly, the doctrine laid down by the law of nations in the case of treaties is, that a breach of any one article by any of the parties frees the other parties from their engagements. In the case of a union of people under one constitution, the nature of the pact has always been understood to exclude such an interpretation. Comparing the two modes, in point of expediency, he thought all the considerations which recommended this Convention, in preference to Congress, for proposing the reform, were in favor of State Con 2 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 it. mer method, that the people of the United States should ordain, and "On the question on Mr. Ells- the States ratify, was adopted. worth's motion to refer the plan to For if it should be alleged at any the Legislatures of the States, future period that the American 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 "Mr. Gouverneur Morris moved, that the States mutually agreed that the reference of the plan be that such a people should be remade to one General Convention, garded as existing, and that the chosen and authorized by the peo- government should be treated as ple, to consider, amend, and estab-its handiwork, they would, on a lish the same. Not seconded. well-known and familiar principle "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 principle of direct action upon the individual citizen, some means must be discovered by which the powers of the central government, whatever they were to be, could be made supreme over the separate powers of the states, in case of any conflict. To abolish the states, or 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." Mr. Curtis says in his Constitutional History of the United States, 2d Vol, pp. 115-116: "The reader who has followed me through the preceding volume has seen that at a very early period in the deliberations of the convention it was settled that the new government must be divided into the three departments of the legislature, the executive, and the judicial, 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 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.3 $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 1 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 |