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Chapter 7:
- Verbal Cavils and criticisms -- “compact,” “Confederacy,” “accession,” etc. -- the “New vocabulary” -- the Federal Constitution a compact, and the States acceded to it -- evidence of the Constitution itself and of contemporary records.
I have habitually spoken of the federal Constitution as a compact, and of the parties to it as sovereign states. These terms should not, and in earlier times would not, have required explanation or vindication. But they have been called in question by the modern school of consolidation. These gentlemen admit that the government under the Articles of Confederation was a compact. Webster, in his rejoinder to Hayne on January 27, 1830, said:
When the gentleman says the Constitution is a compact between the States, he uses language exactly applicable to the old Confederation. He speaks as if he were in Congress before 1789. He describes fully that old state of things then existing. The Confederation was, in strictness, a compact; the States, as States, were parties to it. We had no other General Government. But that was found insufficient and inadequate to the public exigencies. The people were not satisfied with it, and undertook to establish a better. They undertook to form a General Government, which should stand on a new basis—not a confederacy, not a league, not a compact between States, but a Constitution.1
Again, in his discussion with Calhoun, three years afterward, he vehemently reiterates the same denial. Of the Constitution he says: “Does it call itself a compact? Certainly not. It uses the word ‘compact’ but once, and that when it declares that the States shall enter into no compact.2 Does it call itself a league, a confederacy, a subsisting treaty between the States? Certainly not. There is not a particle of such language in all its pages.”3
The artist who wrote under his picture the legend, “This is a horse,” made effectual provision against any such cavil as that preferred by Webster and his followers, that the Constitution is not a compact, because it is not “so nominated in the bond.” As well as I can recollect, there is no passage in the Iliad or the Aeneid in which either of those great works “calls itself,” or is called by its author, an epic poem, yet this would scarcely be accepted as evidence that they are not epic poems. In an examination of Webster's remarks, I do not find that he announces [116] them to be either a speech or an argument; yet their claim to both these titles will hardly be disputed—notwithstanding the verbal criticism on the Constitution just quoted.
The distinction attempted to be drawn between the language proper to a confederation and that belonging to a constitution, as indicating two different ideas, will not bear the test of examination and application to the case of the United States. It has been fully shown, in previous chapters, that the terms “Union,” “Federal Union,” “Federal Constitution,” “Constitution of the Federal Government,” and the like, were used—not merely in colloquial, informal speech, but in public proceedings and official documents—with reference to the Articles of Confederation, as freely as they have since been employed under the present Constitution. The former Union was—as Webster expressly admits—as nobody denies—a compact between states, yet it nowhere “calls itself” “a compact”; the word does not occur in it even the one time that it occurs in the present Constitution, although the contracting states are in both prohibited from entering into any “treaty, confederation, or alliance” with one another, or with any foreign power, without the consent of Congress; and the contracting or constituent parties are termed “United States” in the one just as in the other.
Webster is particularly unfortunate in his criticisms upon what he terms the “new vocabulary,” in which the Constitution is styled a compact, and the states which ratified it are spoken of as having “acceded” to it. In the same speech, last quoted, he says:
This word “accede,” not found either in the Constitution itself or in the ratification of it by any one of the States, has been chosen for use here, doubtless not without a well-considered purpose. The natural converse of accession is secession; and therefore, when it is stated that the people of the States acceded to the Union, it may be more plausibly argued that they may secede from it. If, in adopting the Constitution, nothing was done but acceding to a compact, nothing would seem necessary, in order to break it up, but to secede from the same compact. But the term is wholly out of place. Accession, as a word applied to political associations, implies coming into a league, treaty, or confederacy, by one hitherto a stranger to it; and secession implies departing from such league or confederacy. The people of the United States have used no such form of expression in establishing the present Government.4
Repeating and reiterating in many forms what is substantially the same indea, and attributing the use of the terms which he attacks to an ulterior purpose, Webster says:
This is the reason, sir, which makes it necessary to abandon the use of [117] constitutional language for a new vocabulary, and to substitute, in the place of plain, historical facts, a series of assumptions. This is the reason why it is necessary to give new names to things; to speak of the Constitution, not as a constitution, but as a compact; and of the ratifications by the people, not as ratifications, but as acts of accession.5
In these and similar passages, Webster virtually concedes that, if the Constitution were a compact, if the Union were a confederacy, if the states had, as states, severally acceded to it—all which propositions he denies—then the sovereignty of the states and their right to secede from the Union would be deducible.
Now it happens that these very terms—“compact,” “confederacy,” “accede,” and the like—were the terms in familiar use by the authors of the Constitution and their associates with reference to that instrument and its ratification. Other writers, who have examined the subject since the late war gave it an interest which it had never commanded before, have collected such an array of evidence in this behalf that it is necessary only to cite a few examples.
The following language of Gerry of Massachusetts in the convention of 1787, has already been referred to: “If nine out of thirteen States can dissolve the compact, six out of nine will be just as able to dissolve the new one hereafter.”
Gouverneur Morris, one of the most pronounced advocates of a strong central government in the convention, said: “He came here to form a compact for the good of Americans. He was ready to do so with all the States. He hoped and believed they all would enter into such a compact. If they would not, he would be ready to join with any States that would. But, as the compact was to be voluntary, it is in vain for the Eastern States to insist on what the Southern States will never agree to.”6
Madison, while inclining to a strong government, said: “In the case of a union of people under one Constitution, the nature of the pact has always been understood,” etc.7
Hamilton, in the Federalist, repeatedly speaks of the new government as a “confederate republic” and a “confederacy,” and calls the Constitution a “compact.”8
General Washington—who was not only the first President under the new Constitution, but who had presided over the convention that drew it up—in letters written soon after the adjournment of that body to [118] friends in various states, referred to the Constitution as a compact or treaty, and repeatedly uses the terms “accede” and “accession,” and once the term “secession.” He asks what the opponents of the Constitution in Virginia would do, “if nine other States should accede to the Constitution.”
Luther Martin of Maryland informs us that, in a committee of the general convention of 1787, protesting against the proposed violation of the principles of the perpetual union already formed under the Articles of Confederation, he made use of such language as this:
Will you tell us we ought to trust you because you now enter into a solemn compact with us? This you have done before, and now treat with the utmost contempt. Will you now make an appeal to the Supreme Being, and call on Him to guarantee your observance of this compact? The same you have formerly done for your observance of the Articles of Confederation, which you are now violating in the most wanton manner.9
It is needless to multiply the proofs that abound in the writings of the “fathers” to show that Webster's “new vocabulary” was the very language they familiarly used. Let two more examples suffice, from authority higher than that of any individual speaker or writer, however eminent—from authority second only, if at all inferior, to that of the text of the Constitution itself—that is, from the acts or ordinances of ratification by the states. They certainly ought to have been conclusive, and should not have been unknown to Webster, for they are the language of Massachusetts, the state which he represented in the Senate, and of New Hampshire, the state of his nativity.
The ratification of Massachusetts is expressed in the following terms:
Commonwealth of Massachusetts[119]The Convention, having impartially discussed and fully considered a Constitution for the United States of America, reported to Congress by the convention of delegates from the United States of America, and submitted to us by a resolution of the General Court of the said Commonwealth, passed the 25th day of October last past, and acknowledging with grateful hearts the goodness of the Supreme Ruler of the universe, in affording the people of the United States, in the course of his Providence, an opportunity, deliberately and peaceably, without fraud or surprise, of entering into an explicit and solemn compact with each other, by assenting to and ratifying a new Constitution, in order to form a more perfect Union, establish justice, insure domestic tranquillity, provide for the common defense, promote the general welfare, and secure the blessings of liberty to themselves and their posterity—do, in the name and in behalf of the people of the Commonwealth of Massachusetts, assent to and ratify the said Constitution for the United States of America.
The ratification of New Hampshire is expressed in precisely the same words, save only the difference of date of the resolution of the legislature (or General Court) referred to, and also the use of the word “state” instead of “commonwealth.” Both distinctly accept it as a compact of the states “with each other”—which Webster, a son of New Hampshire and a Senator from Massachusetts, declared it was not; not only so, but he repudiated the very “vocabulary” from which the words expressing the doctrine were taken.
It would not need, however, this abounding wealth of contemporaneous exposition—it does not require the employment of any particular words in the Constitution—to prove that it was drawn up as a compact between sovereign states entering into a confederacy with each other, and that they ratified and acceded to it separately, severally, and independently. The very structure of the whole instrument and the facts attending its preparation and ratification would suffice. The language of the final article would have been quite enough: “The ratification of the conventions of nine States shall be sufficient for the establishment of this Constitution between the States so ratifying the same.” This is not the “language” of a superior imposing a mandate upon subordinates. The consent of the contracting parties is necessary to its validity, and then it becomes not the acceptance and recognition of an authority over them—as Motley represents—but of a compact between them. The simple word “between” is incompatible with any other idea than that of a compact by independent parties.
If it were possible that any doubt could still exist, there is one provision in the Constitution which stamps its character as a compact too plainly for cavil or question. The Constitution, which had already provided for the representation of the states in both houses of Congress, thereby bringing the matter of representation within the power of amendment, in its fifth article contains a stipulation that “no State, without its [own] consent, shall be deprived of its equal suffrage in the Senate.” If this is not a compact between the states, the smaller states have no guarantee for the preservation of their equality of representation in the United States Senate. If the obligation of a contract does not secure it, the guarantee itself is liable to amendment, and may be swept away at the will of three-fourths of the states, without wrong to any party—for, according to this theory, there is no party of the second part.
