CHAPTER V

MR. MADISON'S CONSTRUCTION OF THE CONSTITUTIONAL

COMPACT

THE historical fact, then, being established, that the Constitution is a compact between States sovereign and independent at their accession thereto, it remains to be seen if it results "that the mode of its formation subjects it to . . . the law of compact . . . that in every compact between two or more parties, the obligation is mutual; that the failure of one of the contracting parties to perform a material part of the agreement entirely releases the obligation of the other; and that where no arbiter is provided each party is remitted to his own judgment to determine the fact of failure, with all its consequences.

"On the question for agreeing to the nineteenth resolution, touching the mode of ratification," Mr. Madison's Report of the Debates says:

"Mr. Gouverneur Morris considered the inference of Mr. Ellsworth from the plea of necessity, as applied to the establishment of a new system on the consent of the people of a part of the states, in favor of a like establishment on the consent of a part of the legislature, as a non sequitur. If the Confederation is to be pursued no alteration can be made without the unanimous consent of the legislatures. Legislative alterations not conformable to the federal compact would clearly not be valid. The judges would consider them as null and void. Whereas in case of an appeal to the people of the United States, the supreme authority, the federal compact may be altered by a majority of them, in like manner as the constitution of a particular state may be altered by the majority of the people of a state. The amendment moved by Mr. Ellsworth erroneously supposes that we are proceeding on the

basis of the Confederation. This Convention is unknown to the Confederation.

"MR. MADISON thought it clear that the legislatures were incompetent to the proposed changes. These changes would make essential inroads on the state constitutions, and it would be a novel and dangerous doctrine, that a legislature could change the constitution under which it held its existence. There might indeed be some constitutions within the Union, which had given a power to the legislature to concur in alterations of the federal compact. But there were certainly some which had not; and in the case of these, a ratification must of necessity be obtained from the people. He considered the difference between a system founded on the legislatures only, and one founded on the people, to be the true difference between a league or treaty, and a constitution.25 The former in point of moral obligation, might be as inviolable as the latter. In point of political operation, there were two important distinctions in favor of the latter.

"First, a law violating a treaty ratified by a preexisting law might be respected by the judges as a law, though an unwise or perfidious one. A law violating a constitution established by the people themselves would be considered by the judges as null and void. Secondly the doctrine laid down by the law of nations in the case of treaties is, that a breach of any one article by any of the parties frees the other parties from their engagements. In the case of a union of people under one constitution, the nature of the pact has always been understood to exclude such an interpretation. Comparing the two modes, in point of expediency, he thought all the considerations which recommended this Convention, in preference to Congress, for proposing the reform, were in favor of state conventions, in preference to the legislatures, for examining and adopting it."

As a statement of the differing consequences resulting by the law of nations from a treaty between sovereign powers, or league, and a government established within itself by a sov*Italics by B. S.

ereign power, this conclusion cannot be questioned; and it was familiar to the makers of the Constitution.26 The difference between the conclusion of Mr. Madison and that of the Convention of South Carolina, which passed the Ordinance of Secession, lies neither as to the historical facts of the establishment of the Constitution,* nor as to the validity of the principle here laid down by him, but as to the applicability of that principle to the Constitution; i. e.. Did that instrument constitute "a union of people under one constitution" in the sense used by Mr. Madison? This is the real point at issue in the doctrine of Secession.

According to Mr. Madison himself † the Union was a union of various sovereign peoples, the citizens of which entered it not individually but in virtue of being citizens of States, each of which was a "union of people under one constitution," in the sense meant by Mr. Madison, and each of which accepted it for its own citizens only. These States did not enter it unreservedly. They made express reservation of all such rights of separate government as they did not specifically grant to the common government: thereby at once creating a radical and most important difference in kind between such a constitution and that wherein the majority rules. It could not be said of the Constitution, that "the nature of the pact had always been understood to exclude (the) interpretation ... that a breach of any one article by any of the parties frees the other parties from their engagements," for the simple and adequate reason (among others) that no such pact as this had previously been known, and that no such people then existed, or was called into existence for the purpose of ratifying such a union. As Mr. Madison himself repeatedly says of the pact:

“It is in a manner unprecedented; we cannot find one express example in the experience of the world." 27 ‡

But, obeying Mr. Madison's rule, and "seeking its character in itself," how far the result inferred by him from a conven* v. Appendix 31.

† Ibid.

Debates in Virginia Ratifying Convention.

tional ratification of the Constitution by the people of the several states obtained may be conveniently tested by principles laid down by himself, at another stage of the Debates.

"Mr. Patterson.

The Confederation is in the nature of a compact; and can any state, unless by the consent of the whole, either in politics or law, withdraw their powers? Let it be said by Pennsylvania, and the other large states, that they, for the sake of peace, assented to the Confederation; can she now resume her original right without the consent of the donee?"

Mr. Madison replied: "It had been alleged, that the Confederation, having been formed by unanimous consent, could be dissolved by unanimous consent only. Does this doctrine result from the nature of compacts? Does it arise from any particular stipulation in the Articles of Confederation? If we consider the Federal Union as analogous to the fundamental compact by which individuals compose one society, and which must, in its theoretic origin at least, have been the unanimous. act of the component members, it cannot be said that no dissolution of the compact can be effected without unanimous consent. A breach of the fundamental principles of the compact, by a part of the society, would certainly absolve the other part from their obligations to it. If the breach of any article, by any of the parties, does not set the others at liberty, it is because the contrary is implied in the compact itself, and particularly by that law of it which gives an indefinite authority to the majority to bind the whole, in all cases. This latter circumstance shows, that we are not to consider the Federal Union as analogous to the social compact of individuals: for, if it were so, a majority would have a right to bind the rest, and even to form a new constitution for the whole; which the gentleman from New Jersey would be among the last to admit. If we consider the Federal Union as analogous, not to the social compacts among individual men, but to the conventions among individual states, what is the doctrine resulting from these conventions? Clearly, according to the expositors of the law of nations, that a breach of any one article, by any one

party, leaves all the other parties at liberty to consider the whole convention as dissolved, unless they choose rather to compel the delinquent party to repair the breach. In some treaties, indeed, it is expressly stipulated, that a violation of particular articles shall not have that consequence, and even that particular articles shall remain in force during war, which is in general understood to dissolve all subsisting treaties. But are there any exceptions of this sort to the Articles of Confederation? So far from it, that there is not even an express stipulation that force shall be used to compel an offending member of the . . . Federal Union to discharge its duty." *

How does the Constitutional compact differ from that of the Confederation in those decisive points here laid down by Mr. Madison? That it is not a "social compact among individual men" (besides being everywhere explicitly asserted by him) is necessarily to be deduced from his statements. So far from stipulating (or implying) any “law which gives an indefinite authority to the majority (of the people of the United States) to bind the whole, in all cases," the Constitution is, to the contrary, as has been shown, based on provisions wholly irreconcilable with any such law; and intended to prevent such rule of the majority.28

"This . . circumstance shows that we are not to consider the [Constitution] as analogous to the social compact of individuals: for, if it were so, a majority would have a right to bind the rest."

"If we consider the Federal Union as analogous, not to the social compacts among individual men, but to the conventions among individual states, what is the doctrine resulting from these conventions? Clearly, according to the expositors of the law of nations, that a breach of any one article, by any one party, leaves all the other parties at liberty to consider the whole convention as dissolved, unless they choose rather to compel the delinquent party to repair the breach. In some treaties, indeed, it is expressly stipulated, that a violation of * Elliot's “Debates,” Vol. I, p. 413; W., 1836.