CHAPTER II.

MAKING AND CHANGING WRITTEN CONSTITUTIONS.

1. CONSTITUTION OF THE UNITED STATES.

"IN 1774, Massachusetts recommended the assembling of a Continental Congress to deliberate upon the state of public affairs; and according to her recommendation, delegates were appointed by the colonies for a congress to be held in Philadelphia in the autumn of the same year. In some of the legislatures of the colonies, which were then in session, delegates were appointed by the popular or representative branch; and in other cases they were appointed by conventions of the people in the colonies. The congress of delegates (calling themselves in their more formal acts 'the delegates appointed by the good people of these colonies') assembled on the 4th of September, 1774; and having chosen officers, they adopted certain fundamental rules for their proceedings.

"Thus was organized under the auspices and with the consent of the people, acting directly in their primary, sovereign capacity, and without the intervention of the functionaries, to whom the ordinary powers of government were delegated in the colonies, the first general or national government, which has been very aptly called the revolutionary government,' since in its origin and progress it was wholly conducted upon revolutionary principles. The congress thus assembled, exercised de facto and de jure a sovereign authority; not as the delegated agents of the governments de facto of the colonies, but in virtue of original powers derived from the people. The revolutionary government, thus formed, terminated only when it was regularly superseded by the confederated government under the articles finally ratified, as we shall hereafter see, in 1781.

"In Ware v. Hylton, 3 Dall. 199, Mr. Justice Chase (himself also a Revolutionary statesman) said: 'It has been inquired, what powers Congress possessed from the first meeting in September, 1774, until the ratification of the confederation on the 1st of March, 1781. It appears to me that the powers of Congress during that whole period were derived from the people they represented, expressly given through the medium of their State conventions or State legislatures; or that after they were exercised, they were impliedly ratified by the acquiescence and obedience of the people, &c. The powers of Congress originated from necessity, and arose out of it, and were only limited by events; or, in other words, they were revolutionary in their nature. Their extent depended on the exigencies and necessities of public affairs. I entertain this general idea, that the several States retained all internal sovereignty; and that Congress properly possessed the rights of external sovereignty. In deciding on the powers of Congress, and of the several States before the confederation, I see but one safe rule, namely, that all the powers actually exercised by Congress before that period were rightfully exercised on the presumption not to be controverted, that they were so authorized by the people they represented, by an express or implied grant; and that all the powers exercised by the State conventions or State legislatures were also rightfully exercised on the same presumption of authority from the people.'

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"On the 11th of June, 1776, the same day on which the committee for preparing the Declaration of Independence was appointed, Congress resolved that a committee be appointed to prepare and digest the form of a confederation to be entered into between these colonies;' and on the next day a committee was accordingly appointed, consisting of a member from each colony. Nearly a year before this period (viz., on the 21st of July, 1775), Dr. Franklin had submitted to Congress a sketch of Articles of Confederation, which does not, however, appear to have been acted on. These articles contemplated a union until a reconciliation with Great Britain, and, on failure thereof, the confederation to be perpetual.

"On the 12th of July, 1776, the committee appointed to prepare Articles of Confederation presented a draft, which was in the handwriting of Mr. Dickenson, one of the committee, and a delegate from Pennsylvania. The draft, so reported, was debated from the 22d to the 31st of July, and on several days between the 5th and 20th of August, 1776, On this last day Congress, in committee of the whole, reported a new draft, which was ordered to be printed for the use of the members.

"The subject seems not again to have been touched until the 8th of April, 1777, and the articles were debated at several times between that time and the 15th of November of the same year. On this last day the articles were reported with sundry amendments, and finally adopted by Congress. A committee was then appointed to draft, and they accordingly drafted a circular letter, requesting the States respectively to authorize their delegates in Congress to subscribe the same in behalf of the State.

"Many objections were stated, and many amendments were proposed. All of them, however, were rejected by Congress, not probably because they were all deemed inexpedient or improper in themselves, but from the danger of sending the instrument back again to all the States for reconsideration. Accordingly, on the 26th of June, 1778, a copy, engrossed for ratification, was prepared, and the ratification began on the 9th day of July following. It was ratified by all the States, except Delaware and Maryland, in 1778; by Delaware in 1779, and by Maryland on the 1st of March, 1781, from which last date its final ratification took effect, and was joyfully announced by Congress.

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"Such is the substance of this celebrated instrument, under which the treaty of peace, acknowledging our independence, was negotiated, the War of the Revolution concluded, and the Union of the States maintained until the adoption of the present Constitution.

"The leading defects of the confederation may be enumerated under the following heads :

"In the first place, there was an utter want of all coercive authority to carry into effect its own constitutional measures. This, of itself, was sufficient to destroy its whole efficiency, as a supérintending government, if that may be called a government which possessed no one solid attribute of power. It has been justly observed that, a government authorized to declare war, but relying on independent States for the means of prosecuting it; capable of contracting debts, and of pledging the public faith for their payment, but depending on thirteen distinct sovereignties for the preservation of that faith, could only be rescued from ignominy and contempt by finding those sovereignties administered by men exempt from the passions incident to human nature.' That is, by supposing a case in which all human governments would become unnecessary, and all differences of opinion would become impossible. In truth, Congress possessed only the power of recommendation. It depended altogether upon the good-will of the States, whether a measure should be carried into effect or not. And it can furnish no matter of surprise, under such circumstances, that great differences of opinion as to measures should have existed in the legislatures of the different States; and that a policy, strongly supported in some, should have been denounced as ruinous in others. Honest and enlightened men might well divide on such matters; and in this perpetual conflict of opinion the State might feel itself justified in a silent or open disregard of the Act of Congress. .

"In this state of things, commissioners were appointed by the Legislatures of Virginia and Maryland, early in 1785, to form a compact relative to the navigation of the rivers Potomac and Pocomoke, and the Chesapeake Bay. The commissioners having met at Alexandria in Virginia in March, in that year, felt the want of more enlarged powers, and particularly of powers to provide for a local naval force and a tariff of duties upon imports. Upon receiving their recommendation, the Legislature of Virginia passed a resolution for laying the subject of a tariff before all the States composing the Union. Soon afterwards, in January, 1786, the legislature adopted another resolution, appointing commissioners, who were to meet such as might be appointed by the other States in the Union at a time and place to be agreed on, to take into consideration the trade of the United States; to examine the relative situation and trade of the States; to consider how far a uniform system in their commercial relations may be necessary to their common interest and their permanent harmony; and to report to the several States such an Act, relative to this great object, as, when unanimously ratified by them, will enable the United States in Congress assembled to provide for the same.'

VOL. I.-14

"These resolutions were communicated to the States, and a convention of commissioners from five States only, namely, New York, New Jersey, Pennsylvania, Delaware, and Virginia, met at Annapolis in September, 1786. After discussing the subject, they deemed more ample powers necessary, and as well from this consideration, as because a small number only of the States was represented, they agreed to come to no decision, but to frame a report to be laid before the several States, as well as before Congress. In this report they recommended the appointment of commissioners from all the States, 'to meet at Philadelphia on the second Monday of May, then next, to take into consideration the situation of the United States; to devise such further provisions as shall appear to them necessary to render the Constitution of the Federal government adequate to the exigencies of the Union; and to report such an Act for that purpose to the United States in Congress assembled, as, when agreed to by them, and afterwards confirmed by the legislature of every State, will effectually provide for the same.'

"On receiving this report, the Legislature of Virginia passed an Act for the appointment of delegates to meet such as might be appointed by other States, at Philadelphia. The report was also received in Congress. But no step was taken until the Legislature of New York instructed its delegation in Congress to move a resolution, recommending to the several States to appoint deputies to meet in convention for the purpose of revising and proposing amendments to the Federal Constitution. On the 21st of February, 1787, a resolution was accordingly moved and carried in Congress, recommending a convention to meet in Philadelphia, on the second Monday in May ensuing, for the 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.' The alarming insurrection then existing in Massachusetts, without doubt, had no small share in producing this result. The report of Congress on that subject at once demonstrates their fears and their political weakness.

"At the time and place appointed, the representatives of twelve States assembled. Rhode Island alone declined to appoint any on this momentous occasion. After very protracted deliberations, the convention finally adopted the plan of the present Constitution on the 17th of September, 1787; and by a contemporaneous resolution, directed it to be 'laid before the United States in Congress assembled,' and declared their opinion, 'that it should afterwards be submitted to a convention of delegates chosen in each State by the people thereof, under a recommendation of its legislature for their assent and ratification;' and that each convention assenting to and ratifying the same should give notice thereof to Congress. The convention, by a further resolution, deciared their opinion, that as soon as nine States had ratified the Constitution, Congress should fix a day on which electors should be appointed by the States which should have ratified the same, and a day on which the electors should assemble and vote for the president, and time and place of commencing proceedings under the Constitution; and that after such publication the electors should be appointed and the senators and representatives elected. The same resolution contained further recommendations for the purpose of carrying the Constitution into effect.

"Congress, having received the report of the convention on the 28th of September, 1787, unanimously resolved, that the said report, with the resolutions and letter accompanying the same, be transinitted to the several legislatures in order to be submitted to a convention of delegates chosen in each State by the people thereof, in conformity to the resolves of the convention, made and provided in that case.'

"Conventions in the various States which had been represented in the general convention were accordingly called by their respective legislatures; and the Constitution having been ratified by eleven out of the twelve States, Congress, on the 13th of September, 1788, passed a resolution appointing the first Wednesday in January following for the choice of electors of president; the first Wednesday of February following, for the assembling of the electors to vote for a president; and the first Wednesday of March following, at the then seat of Congress [New York], the time and place for commencing proceedings under the Constitution. Electors were accordingly appointed in the several States, who met and gave their votes for a president; and the other elections for senators and representatives having been duly made, on Wednesday, the 4th of March, 1789, Congress assembled and commenced proceedings under the new Constitution. A quorum of both Houses, however, did not assemble until the 6th of April, when, the votes for President being counted, it was found that George Washington was unanimously elected President, and John Adams was elected Vice-President. On the 30th of April President Washington was sworn into office, and the government then went into full operation in all its departments.

"North Carolina had not, as yet, ratified the Constitution. The first convention called in that State, in August, 1788, refused to ratify it without some previous amendments and a declaration of rights. In a second convention, however, called in November, 1789, this State adopted the Constitution. The State of Rhode Island had declined to call a convention; but finally, by a convention held in May, 1790, its assent was obtained; and thus all the thirteen original States became parties to the new government." - 1 Story's Commentaries on the Constitution of the United States (5th ed.), §§ 200, 201, 216, 222-224, 225, 242, 248, 272-276, 277-280.1

1 Reprinted by permission. - ED.