for its establishment, it will be convenient here to state the position in which they found themselves at this period in their deliberations, the purposes which they had in view, and the steps which they took to accomplish their objects.

They were engaged in preparing a new system of government, and in providing for its introduction. When they were first called together, the general purpose of the States may seem to have been confined to a mode of introducing changes in the fundamental compact of the Union, such as was provided for by the Articles of Confederation. But the Convention had found itself obliged, from the sheer necessities of the country, to go far beyond the Confederation, and to make a total change in the principle of the government. It became, therefore, necessary for them to provide a mode of enacting or establishing this change, which would commend itself to the confidence of the people, by its conformity with their previous ideas of constitutional action, and be at the same time consonant with reason and truth.

Again, there was a peculiarity in their situation, which rendered it quite different from that of the delegates of a people who had abolished a pre-existing government, and had assembled a representative body to form a new one. The Confederation still existed. As a compact between sovereign States, providing for a special mode in which alterations of its articles were to be made, and limiting their adoption to the case of unanimous consent, it was still in

force. The States, in their political capacities as sovereign communities, were still the parties to the compact, and their legislatures alone were clothed with the authority to change its provisions. It was necessary, therefore, to encounter and to solve the question, whether a new government, framed upon a principle unlike that of the Confederation, and embracing an entirely different legislative authority, could be established in the mode prescribed by the existing compact of the States; and if it could not, whether there existed any power, apart from the State governments, by which it could be established and be clothed with a paramount authority, resting on a basis of principle, and not upon force, fiction, or fraud.

In the early formation of the Union that took place before the Declaration of Independence, questions of the constitutional power of the Colonies which became members of it could scarcely arise at all, since those who undertook to act for and to represent the people of each Colony were proceeding upon revolutionary principles and rights. But before the Articles of Confederation, which constituted the first union of the States upon ascertained and settled principles of government, had been agreed upon, many of the State constitutions were formed; and when those Articles were entered into, the State governments represented the sovereignty of distinct political communities, and were entirely competent to form such a confederacy as was then established by their joint and unanimous consent. All the

obligations which the Confederation imposed upon its members rested upon the States in their corporate capacities; and the government of each of them was competent to assume, for the State, such obligations, and to enter into such stipulations. In the same way, it was competent to the State governments to make alterations in the Articles of Confederation, by unanimous consent, so long as those alterations did not change the fundamental principle of the Union, which was that of a system of legislation for the States in their corporate capacities.

But when it was proposed to reverse this principle, and to create a government, external to the governments of the States, clothed with authority to exact obedience from the individual inhabitants of the States, and to act upon them directly, the question might well arise, whether the State governments were competent to cede such an authority over their constituents, and whether it could be granted by anybody but the people themselves. It might, it is true, be said, that their constitutions made the governments of the States the depositaries of the sovereignty and political powers of the people inhabiting those States. But if this was true, in a general sense, for the purpose of exercising the political powers of the people, it was not true, in any sense, for the purpose of granting away those powers to other agents. The latter could only be done by those who had constituted the first class of agents, and who were able to say that certain portions of the authority with which they had been clothed should be withdrawn, and be revested in another class.

Undoubtedly it would have been possible to have given the Constitution of the United States a theoretical adoption by the people of the States, by committing its acceptance to the State legislatures, relying on the acquiescence of the people in their acts. But there were two objections to this course. The one was, that the legislatures were believed less likely than the people to favor the establishment of such a government as that now proposed. other was, that the kind of legal fiction by which the presumed assent of the people must be reached, in this mode, would leave room for doubts and disputes as to the real basis and authority of the gov ernment, which ought, if possible, to be avoided.

The

Another difficulty of a kindred nature rendered it equally inexpedient to rely on the sanction of the State legislatures. The States, in their corporate capacities, and through the agency of their respective governments, were parties to a federal system, which they had stipulated with each other should be changed only by unanimous consent. The Constitution, which was now in the process of formation, was a system designed for the acceptance of the people of all the States, if the assent of all could be obtained; but it was also designed for the acceptance of a less number than the whole of the States, in case of a refusal of some of them; and it was at this time highly probable that at least two of them would not adopt it. Rhode Island had never been represented in the Convention; and the whole course of her past history, with reference to

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enlargements of the powers of the Union, made it quite improbable that she would ratify such a plan of government as was now to be presented to her. The State of New York had, through her delegates, taken part in the proceedings, until the final decision, which introduced into the government a system of popular representation; but two of those delegates, entirely dissatisfied with that decision, had withdrawn from the Convention, and had gone home to prepare the State for the rejection of the scheme.1 The previous conduct of the State had made it not at all unlikely that their efforts would be successful. Nor were there wanting other indications of the most serious dissatisfaction, on the part of men of great influence in some of the other States. Unanimity had already become hopeless, if not impracticable; and it was necessary, therefore, to look forward to the event of an adoption of the system by a less number than the whole of the States, and to make it practicable for a less number to form the new Union for which it provided. This could only be done by presenting it for ratification to the people of each State, who possessed authority to withdraw the State government from the Confederation, and to enter into new relations with the people of such other States as might also withdraw from the old and accept the new system.

There was another and more special reason for resorting to the direct sanction of the people of the

1 See the letter of Messrs. Yates and Lansing to Governor Clinton, Elliot, I. 480.