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minority, upon the principle that the Union was a society subject to the control of the greater part of its members; - still another, that the States which might ratify it would bind themselves, but no one else.
The truth with regard to these questions, which perplexed the minds of men in that assembly somewhat in proportion to their acuteness and their proneness to metaphysical speculations, was in reality not very far off. The Articles of Confederation had certainly declared that no alteration should be made in any of them, unless first proposed by the Congress, and afterwards unanimously agreed to by the State legislatures. But in two very important particulars the Convention had already passed beyond what could be deemed an alteration of those Articles. They had prepared and were about to propose a system of government that would not merely alter, but would abolish and supersede, the Confederation; and they had determined to obtain, what they regarded as a legitimate authority for this purpose, the consent of the people of the States, by whose will the State governments existed, from whom those governments derived their authority to enter into the compact of the Confederation, and whose sovereign right to ameliorate their own political condition could not be disputed. This system they intended should be offered to all. The refusal of some States to accept it could not, upon principles of natural justice and right, oblige the others to remain fettered to a government which had been pronounced by twelve of the thirteen
legislatures to be defective and inadequate to the exigencies of the Union. At the same time, the independent political existence of the people of each State made it impossible to treat them as a minority subject to the power of such majority as would be formed by the States that might adopt the Constitution. If the people of a State should ratify it, they would be bound by it. If they should refuse to ratify it, they would simply remain out of the new Union that would be formed by the rest. It was therefore determined that the Constitution should undertake to be in force only in those States by whose inhabitants it might be adopted.1
Then came the question, in what mode the assent of the people of the States was to be given. The constitution of one of the States provided that it should be altered only in a prescribed mode; and it was said that the adoption of the Constitution now proposed would involve extensive changes in the constitution of every State. This was equally true of the constitutions of those States which had provided no mode for making such changes, and in which the State officers were all bound by oath to support the existing constitution. These difficulties, however, were by no means insurmountable. It was universally acknowledged that the people of a State were the fountain of all political power, and if, in the method of appealing to them, the consent of the State government that such appeal should be made were involved, there could be no question that 2 Maryland.
1 Elliot, V. 499.
the proceeding would be in accordance with what had always been regarded as a cardinal principle of American liberty. For, since the birth of that liberty, it had been always assumed that, when it has become necessary to ascertain the will of the people on a new exigency, it is for the existing legislative power to provide for it by an ordinary act of legisla tion.1
Whatever changes, therefore, in the State constitutions might become necessary in consequence of the adoption of the national Constitution, it would be a just presumption that the will of the people, duly ascertained by their legislature, had decided, by that adoption, that such changes should be made; and the formal act of making them could follow at any time when arrangements might be made for it. But if no mode of ratification of the national Constitution were to be prescribed, and it were left to each State to act upon it in any manner that it might prefer, there would be no uniformity in the mode of creating the new government in the different States; and if the Convention and the Congress were to refer its adoption to the State legislatures, it would not rest on the direct authority of the people. For these reasons, the Convention adhered to the plan of having the Constitution submitted directly to assemblies of representatives of the people in each State, chosen for the express purpose of deciding on its adoption.2
1 Works of Daniel Webster, VI. 227.
2 The vote, however, was only six States to four. Elliot, V. 500.
There was still another question, of great practical importance, to be determined. Was the Constitution to go into operation at all, unless adopted by all the States, and if so, what number should be sufficient for its establishment? It appeared clearly enough, that to require a unanimous adoption would defeat all the labors of the Convention. Rhode Island had taken no part in the formation of the Constitution, and could not be expected to ratify it. New York had not been represented for some weeks in the Convention, and it was at least doubtful how the people of that State would receive the proposed system, to which a majority of their delegates had declared themselves to be strenuously opposed.' Maryland continued to be present in the Convention, and a majority of her delegates still supported the Constitution; but Luther Martin confidently predicted its rejection by the State, and it was evident that his utmost energies would be put forth against it. Under these circumstances, to have required a unanimous adoption by the States would have been fatal to the experiment of creating a new government. Some of the members were in favor of such a number as would form both a majority of the States and a majority of the people of the United States. But
1 Two of the New York delegates, Messrs. Yates and Lansing, left the Convention on the 5th of July. Hamilton had previously returned to the city of New York, on private business. He left June 29 and returned August 13. It appears from his correspondence that
he was again in the city of New York on the 20th of August, and that he remained there until the 28th. On the 6th of September he was in the Convention. The vote of the State was not taken in the Convention after the retirement of Yates and Lansing.
there was an idea familiar to the people, in the number that had been required under the Confederation upon certain questions of grave importance; and in order that the Constitution might avail itself of this established usage, it was determined that the ratifications of the conventions of nine States should be sufficient to establish the Constitution between the States that might so ratify it.'
The Constitution, as thus finally prepared, received the formal assent of the States in the Convention, on the last day of the session. The great majority of the members desired that the instrument should go forth to the public, not only with an official attestation that it had been agreed upon by the States represented, but also with the individual sanction and signatures of their delegates. Three of the members present, however, Randolph and Mason of Virginia, and Gerry of Massachusetts, notwithstanding the proposed form of attestation contained no personal approbation of the system, and signified only that it had been agreed to by the unanimous consent of the States then present, refused to sign the instrument.3 The objections which these gentlemen had to different features of the Constitution would have been waived, if the Convention had been willing to take a course quite opposite to that which
1 Elliot, V. 499-501. The article embodying this decision was the 21st in the report of the committee of detail. It became, on the revision, Article VIII. of the Constitution.
2 September 17.
3 This form of attestation had been adopted in the hope of gaining the signatures of all the members, but without success.