CHAPTER VII.

The Constitution of 1787 a Compact.

MR. 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. "The Constitution is not a contract," says he, "but the result of a contract; meaning no more by contract than assent. Founded on consent it is a government proper." Now, Mr. Webster himself being the judge, the Constitution is not a government at all; for a government is, says he, "the political being created by the Constitution or fundamental law.” But "founded on consent," not on implied or necessitated, but on "voluntary consent," it is a compact proper. Mr. Webster is compelled to call the Constitution a government, in direct violation of his own definitions and principles, in order to keep from calling it a compact.

In what manner the Constitution is founded on consent, on a deliberate and voluntary consent, Mr. Webster has himself told us, only a few pages in advance of the above admission. "It is to be remarked," says he, “that the Constitution began to speak only after its adoption. Until it was ratified by nine States it was but a proposal, the mere draft of an instrument. It was like a deed drawn but not executed." This is most exactly and perfectly true. The Constitution was a dead letter, a powerless and inoperative thing, until the ratification or solemn "voluntary assent" of nine States breathed into it the breath of

life. It was from this consent, from this compact of nine States, that "the Constitution resulted" as a living or an authoritative document. But when the nine States assented to that "proposal or mere draft of an instrument," and ratified the same by signing it, then each and every article therein specified and written became an article of agreement between the parties to it. "It was like a deed drawn but not executed." But when executed or ratified it was then like a deed signed by the parties; and all the written articles thereof became articles of agreement between the parties. Thus the Constitution not only resulted from the compact of the nine States, but became itself the compact; or, in other words, the written expression of the terms, the conditions, and the articles of the compact. This is what we mean by calling the Constitution a compact between the States. And is not this the language of truth?

Now, on what conditions, or in what cases, does such voluntary consent become a compact proper? Each of the nine States, as it assented to and ratified the Constitution, agreed to all its terms and articles. It agreed to forego the exercise of various powers, and to assume various important liabilities, in consideration that eight other States would do precisely the same thing. And it also agreed that the powers thus delegated by the nine States, or conferred on the general government to be erected for the common good, should be distributed, exercised, limited, and controlled, according to the terms and articles of the Constitution. Is not this a compact proper? Have we not here mutual promises, each State parting with what it possessed, and, in consideration thereof, seeking to derive some benefit from the others? If so, then is not this a compact in the proper sense of the word?

The same idea is perfectly expressed by Mr. Webster, in the speech before us. "On entering into the Union," says he, "the people of each State gave up a part of their

own power to make laws for themselves, in consideration that, as to common objects, they should have a part in making laws for other States." Here is the voluntary relinquishment on the one part, and the valuable consideration on the other. Is not this a contract proper? If not, then have Blackstone, and Kent, and Pothier, and Domat, and Story written in vain on the nature and law of contracts. If not, then indeed may we despair of ever arriving at the meaning of any one word in any one language under the sun.

It possesses every conceivable attribute of a valid contract. 1. There were "the parties capable of contracting"-the States. 2. It is admitted to have been "voluntary." 3. There was "the sufficient consideration"-the powers surrendered, and the liabilities incurred. Thus it fully answers to every condition laid down by Judge Story himself,* as the tests or criteria of a contract proper. It bears no resemblance to those imaginary transactions which certain European writers have invented to explain the origin of their governments, and to give stability to their political theories by fastening them, as with anchors, to past ages. On the contrary, it is historical and real. The time and the manner, the substance and the form, and all the stipulations, are written down and known. It was deliberately and solemnly entered into yesterday; and it is as deliberately and solemnly denied to-day. Such is the incurable sophistry of power!

The constitution of England is not a compact. There is not, in all the history of England, the least intimation of the people's having assembled, either by themselves or by their representatives, to establish the institution of King, or Lords, or Commons. Yet these three powers constitute the main features in the government of Great Britain. Each power holding the balance between the other two, so as to prevent either from gaining the ascend*Conflict of Laws, p. 307.

ancy, is what forms the stable equilibrium of the constitution of England. But yet certain parts of the British constitution are compacts, and are so called by writers who reject the theory of a compact as to the whole. According to De Lolme and other authors, Great Britain owes her admirable constitution to the Norman conquest rather than to compact. "It is to the era of the conquest," says he, "that we are to look for the real foundation of the English constitution." Yet changes and improvements in that constitution which, instead of growing, were made by competent parties, he calls compacts. Thus, says he, in reference to the accession of William III. to the throne,

care was taken to repair the breaches which had been made in the constitution, as well as to prevent new ones, and advantage was taken of the rare opportunity of entering into an original and express compact between king and people." Then, after having specified some of the improvements made in the constitution by this compact, he adds, "Lastly, the keystone was put to the arch by the final establishment of the liberty of the press. The Revolution of 1689 is, therefore, the third grand era in the history of the constitution of England." Again, he says, "Without mentioning the compacts which were made with the first Kings of the Norman line, let us only cast our eyes on Magna Charta, which is still the foundation of English liberty,t being the great compact by which the Kings, the barons, and the people entered into certain mutual stipulations respecting the prerogatives of the Crown and the rights of the subject."

Thus the English revolution, like our own, was followed by a compact; and the only difference was that the compact of 1688 was in addition to an old constitution, whereas the compact of 1788 was a constitution in toto celo.

* De Lolme on the Constitution, p. 48.

† Ibid, p. 287.

I say the people, because those who followed the barons at Runnymede demanded and obtained stipulations in favor of the people es well as in favor of their leaders.

Locke, the great popular champion of the theory of the social compact, was then in the ascendant in the United States, as he was with the Whigs in England. That theory, though exploded now, was then almost universally received in America. That is to say, exploded by showing that there is no historical evidence of any such compact at the origin of the governments of the Old World, and that the alleged transaction was fictitious.* But the fiction, which had been only partially realized at the end of revolutions, and not at the beginning of societies, became a fact in the hands of American legislators. In the language of Governor Morris, they came to the convention of 1787 "to make a compact," and they made one. But this draft of a compact, we are told, calls itself a constitution, and not a compact at all. Very well. Suppose it had called itself a compact, even an "original, explicit, and solemn compact," would it not have been just as easy for Mr. Justice Story to affirm that this only meant an "implied contract," as it was for him to do the same thing in regard to the Constitution of Massachusetts? 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

*This is the ground taken, and unanswerably maintained by Hume, in his essay on the "Original Contract.' Essays," vol. i., Essay 12. The theory of Rousseau is rejected by M. Comte ("Theorie de Legislation," liv. i. c. 2) on the same ground. Sir William Temple ("Works," vol. ii. pp. 37, 46) had previously rejected the doctrine of the Social Contract.' Kant, the philosopher of Konigsberg, treats it as a frivolous and impractical notion. Heeren ("On Political Theories," p. 239) says that a social contract neither was, nor could have been, actually concluded. Stahl (“Philosophy of Rights," vol. ii., part ii., p. 142) rejects the doctrine as visionary. Godwin, likewise ("Political Justice," book iii., c. 2 and 3) rejects it. The doctrine of the social compact is subjected to an exhaustive analysis by Mr. Austin ("Prov. of Jurisprudence," 331-71), and triumphantly refuted. Jeremy Bentham likewise rejects the same hypothesis as visionary.