Is Davis a Traitor: Or Was Secession a Constitutional Right Previous to the War of 1861? Annotated.

by Albert Taylor Bledsoe

The third President of the United States, Jefferson as well as John Quincy Adams, considered the Constitution “a compact.”

Even the Federalist, in submitting the Constitution to the people, sets it before them as “the compact.”

Now it is a very remarkable fact that Alexander Hamilton was just as clearly and decidedly of opinion that the Constitution of a State is a compact, as Mr. Webster was of the opposite notion.

The Constitution of Massachusetts not only calls itself a compact, but the people therein acknowledge, with grateful hearts, that Providence has afforded them an opportunity of entering into this “original, explicit, and solemn compact.”

The same State, as we have seen, in her ordinance of ratification, makes the same acknowledgment of the goodness of the Supreme Ruler of the Universe for affording the people of the United States an opportunity of entering into an explicit and solemn compact by assenting to, and ratifying a new Constitution.

It has been the boast of America, and of Virginia especially, that she was the first in the history of mankind to make a complete Constitution, to reduce it to writing, and, in the name of the people in Convention assembled, to adopt and sign it for the government of themselves and their posterity.

In the very first sentence of “The Federalist,” as well as in various other sentences of the same work, “the existing Federal government” is spoken of just as if no one entertained a doubt as to its real nature or its name.

Me. Webster admits that the Constitution is “founded on consent or agreement, or on compact;” meaning no more by that word than “voluntary consent or agreement.” But he denies that it is itself a compact.

But although the convention of 1787 did not, on the very face of the Constitution, call itself a compact, yet in the letter which, by their “unanimous order,” was dispatched with that instrument to the President of Congress, they use the same language in describing the nature of the transaction, that is employed by Sidney, and Locke, and Rousseau to define “the social contract,” as we shall hereafter see.

Like every other despotic power, it must, of course, have its sophists, its sycophants, and flatterers, to persuade it that it can never violate its compacts, because it has never made any compact to be violated.

1. The facts of the case; 2. The language of the Constitution itself; and 3. The views of Hamilton, Madison, Morris, and other framers of the Constitution; and 4. The absurdities flowing from the doctrine that the Constitution is not a compact between the States, but was ordained by the people of America as one nation.

Men of intelligence,” says he, “discovered the feebleness of the structure” of the Confederation; “but the great body of the people, too much engrossed with their distresses to contemplate any but the immediate causes of them, were ignorant of the defects of their Constitution.” (“Hamilton's Works,” vol. ii., p. 445.)

Those resolutions merely appoint commissioners to meet such commissioners as may be appointed by the other States, “to take into consideration the trade of the United States,” and “to consider how far a uniform system in their commercial regulations may be necessary to their common interest and permanent harmony.”

This resolution, as everyone knows, led to the Annapolis Convention, which took the next great step towards the formation of the new Constitution. Nor was this a popular movement. It originated in the brain of Alexander Hamilton.

“They are the more naturally led to this conclusion,” say the Convention, “as in their reflections on the subject they have been induced to think that the power of regulating trade is of such comprehensive extent, and will enter so far into the grand system of the Federal government, that to give it efficacy, and to obviate questions and doubts concerning its precise nature and limits, may require a correspondent adjustment in other parts of the Federal system.”

In compliance with this recommendation of “a general meeting of the States in a future convention,” twelve States met at Philadelphia on the 14th of May, 1787, with instructions to join “in devising and discussing all such alterations and further provisions as may be necessary to render the Federal Constitution adequate to the exigencies of the Union.”

Thus it was Alexander Hamilton, as the master spirit of the Annapolis Convention, who first conceived the idea of a general convention to revise and amend the Federal Government, and it was James Madison, as the great ruling genius of the legislature of Virginia, who gave the first and most powerful impulse to that conception. The great mass of the people had very little to do with the movement.

The Convention of '87, also call the old Confederation “the Federal Government.”

The plain and unquestionable fact is, that each State adopted or rejected the Constitution for itself, and for itself alone. No twelve States could by their united action lay the bonds of a new Constitution on the thirteenth State. This was universally conceded. The little State of Rhode Island stood aloof; and though her conduct was reprobated, no one denied her right. Neither all the other States combined, nor all the people of America, had the shadow of an authority to constrain her action, or to control her own free choice.

But this fact, which is far too recent and too well authenticated to be denied by any one, goes to the very foundation of the government of the United States, and shows that its Constitution rested on a federal, and not on a national act. It shows that it was a union of States, effected by the several acts of each State, and not the union of all the individuals in America, acting as one political community.

All this was known to Mr. Webster. No man with the least political information or reading could have remained ignorant of it. But still he glossed it over, or kept it in the far distant background, as unsuited to his hypothesis and to the logic of the Northern power, that the Constitution was ordained by “ the people of the United States in the aggregate,” and not by the people of the United States in the segregate.

Mr. Motley. This most unscrupulous writer asserts: “The Constitution was not drawn up by the States, it was not promulgated in the name of the States, it was not ratified by the States.” (Rebellion Record, vol. 1., p. 211) Now each and every one of these assertions is diametrically opposed to the truth. Strike out the little syllable “not” from every clause of the above sentence, and it will then express the exact truth.

Every iota of the Constitution was decided upon, and found a place in that written instrument, by a vote of the States; each State having one vote; the little State of Delaware, for example, having an equal vote with New York, Pennsylvania, or Virginia.

On the question for a single Executive; it was agreed to,—Massachusetts, Connecticut, Pennsylvania, Virginia, North Carolina, South Carolina, Georgia, aye—7; New York, Delaware, Maryland, no— 3.”

The second assertion of Mr. Motley, that the Constitution “was not promulgated in the name of the States,” is equally unfortunate. For, as everyone knows, it was promulgated by the Congress of the Confederation in which the States alone were represented, and in which all the States were perfectly equal.

The “Article of Confederation” says: “In determining questions in the United States, in Congress assembled, each State shall have one vote.” (Art. v.) It was thus as equals that the States voted in determining to promulgate the new Constitution; and it was in consequence of that action of the States, that the Constitution was promulgated and laid before the people of the several States for their adoption.

The Constitution was not ratified by the States,” says Motley. In the Resolutions just quoted, and which were unanimously adopted by the Convention of 1787, we find this clause: “Resolved, that in the opinion of this Convention that as soon as the Convention of nine States shall have ratified this Constitution, the United States in Congress assembled should fix a day on which electors should be appointed by the States which shall have ratified the same,” &

2. The Language of the Constitution. “We the people of the United States, in order to form a more perfect union, do ordain and establish this Constitution for the United States of America.” The first clause of this preamble to the Constitution, wholly detached from its history and from every other portion of the same instrument, as well as from all the contemporary and subsequent expositions of its authors, is made the very corner-stone of the Northern theory of the general government of the United States.

Hence, passing by those arguments, I shall, by an appeal to the records of the Convention of 1787, make my position good, and annihilate the great corner-stone of the Northern theory of the Constitution of the United States.

It is well known that in the original draft of the Constitution, its preamble, instead of saying, “We, the people of the United States,” specified each State by name, as the previous Articles of Confederation had done. If it had remained thus, then the States would have appeared, on the very face of the preamble itself, as the parties to the Constitution. But the preamble, as is well known, was afterwards changed, by omitting to mention the States by name. There are, however, some most important facts connected with the change and the origin of the words in question, which seem to be wholly unknown on both sides of the Atlantic.

This clause, “We, the people of the United States,” introduced by the “committee on style,” and passed over in perfect silence by the whole Convention, is the great stronghold, if it has one, of the Northern theory of the Constitution.

In the Convention, says the record, “Gouverneur Morris moved that the reference of the plan (i. e., of the Constitution) be made to one General Convention, chosen and authorized by the people, to consider, amend, and establish the same.” (The Madison Papers, 1184) This motion, if adopted, would indeed have caused the Constitution to be ratified by “the people of the United States in the aggregate,” or as one nation. This would, in fact, have made it a Government emanating from the people of America in one General Convention assembled and not from the States. But how was this motion received by the Convention? Was it approved and passed in the affirmative by that body? It did not even find a second in the Convention of 1787. So says the record, (“The Madison Papers,” p. 1184) and this is a most significant fact.

Thus, as the penman of the committee on style, he abused his high position, not only to mould the judiciary system of the United States to suit his “own notions,” but also to determine the fate of two vast empires!

I answer this question in the words of Gouverneur Morris himself. “The Constitution,” says he, “was a compact, not between individuals, but between political societies, the people, not of America, but of the United States, each enjoying sovereign power and of course equal rights.” (Life and Writings, vol. iii., p. 193.)

For Madison introduced a motion which required “a concurrence of a majority of both the States and the people (“The Madison Papers,” 1470.) at large to establish the Constitution; and this proposition was rejected by the Convention.

Some insisted that it should be ratified by the States in their corporate capacity—that is, by their legislatures; and others that it should be ratified by the States in their sovereign political capacity—that is, by their Conventions assembled for that express purpose. Or, in other words, some contended that it ought to be ratified by their general agents, the legislatures; and others that it ought to be ratified by their special agents, the Conventions elected and assembled to perform that high act of sovereign power. In both cases, it was to be ratified by the States, but the opposite parties preferred different modes of ratification by them.

In debating this question, as to the mode of ratification by the States (the only one before the Convention), some of the most inflexible advocates of State sovereignty insisted that it should be ratified by “the people of the United States.”

Another strong reason (said he) was that admitting the legislatures to have a competent authority it would be wrong to refer the plan to them, because succeeding legislatures, having equal authority, could undo the acts of their predecessors.” (“Madison Papers,” p. 1177.)

This argument was repeatedly urged by other members, and it was insisted that if the Constitution should be ratified by the legislatures of the States, instead of by the people of the States, it would rest upon a weak and tottering foundation, since the legislatures which had established might claim the power to repeal.

Those who advocated the mode of ratification by the people, or by the Conventions of the States elected for that purpose, prevailed over those who urged the ratification by the legislatures. The majority favored the mode of ratification by the people or the Conventions.

For when it was determined that the Constitution should be ratified by “the Conventions of the States,” and not by the legislatures, this was exactly equivalent, in the uniform language of the Convention of 1787, to saying that it shall be ratified by “the people of the States.”

We have already seen, (Chapter v.) that he pronounced the Constitution “a compact between the United States, each enjoying sovereign power.” Indeed, in the Convention of 1787, he expressly declared, that the object was to form a “compact with other States;” and he afterwards declared, that “the thing had been done.” Again, James Madison himself, “the father of the Constitution,” and the most laborious member of the Convention of 1787, called it, as we have seen, “a pact” between the States in that Convention; and from that day to the end of his life, Mr. Madison continued to pronounce the new Constitution “a compact to which the States are the parties.”

Now, there is James Wilson, inferior only to Madison and Hamilton in the influence he exerted in favor of the new Constitution, who declares, that the only object aimed at by the Convention of '87, was to enable the States “to confederate anew on better principles;” and if no more could be effected, he would agree to “a partial union of the States, with a door left open for the accession of the rest.” Accordingly, it was finally agreed by the Convention, that nine States might form the new Union, with a door left open for the accession of the other four. In fact, eleven States confederated on the new principles; and it was more than a year before the remaining two States acceded to the compact of the Constitution, and became members of the Union.

If necessary, it might be shown by various other extracts, that Alexander Hamilton, while insisting on the adoption of the new Constitution in The Federalist, speaks of the new Union as a confederacy of States.

Do they require, that in the establishment of the Constitution, the States should be regarded as distinct and independent sovereigns? They are so regarded by the Constitution proposed.”

In the preceding number of The Federalist, it is said, “Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act.”

Nay, if he had only considered the three sentences which immediately precede the extract made by him, he would have seen that Hamilton was speaking to a very different question from that which had so fully engrossed and occupied his mind. He would have seen, that the language related, not to the question whether the Constitution ought to be ratified by the people of the States, or by the people of America as one nation; but to the question, whether it ought to be ratified by the Legislatures, or by the people, of the several States.

The Constitution is to be founded,” says that highest of all authorities “on the assent and ratification of the people of America, given by deputies elected for the special purpose; but,” it is added, “this assent and ratification is to be given by the people, not as individuals comprising one entire nation, but as composing the distinct and independent States to which they respectively belong.

Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority; in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States, as evidences of the will of a majority of the people of the United States. Neither of these has been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act.”

Patrick Henry, in the ratifying Convention of Virginia, put forth all his powers to cause the new Constitution to be rejected.