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do not exactly know; but we may well surmise it. A great deal of discussion followed in regard to this proposition, in the Confederate Congress, in the legislatures of the commonwealths, in the press, and among the people. Hamilton almost despaired of seeing it accepted. He resolved upon the expedient of securing from the New York legislature instructions to its delegates in the Confederate Congress to move and support in that body a recommendation by that body to the several commonwealths for the assembly of the convention. He succeeded in the legislature, and, with the aid of Massachusetts, in the Congress. This settled the question; and the convention, composed of delegates from all the commonwealths but Rhode Island, met in Philadelphia in May of 1787.

It was composed of almost all the really great characters which the revolution had produced. The natural leaders of the American people were at last assembled for the purpose of deliberating upon the whole question of the American state. They closed the doors upon the idle curiosity and the crude criticism of the multitude, adopted the rule of the majority in their acts, and proceeded to reorganize the American state and frame for it an entirely new central government. Our question at this point is in regard to the first part of their work, viz; the reorganization of the American state; not its reorganization in the constitution, that is a topic of constitutional law, and comes under the next division of my treatise, — but its reorganization for the original establishment of the constitution. This was the transcendent result of their labors. It certainly was not understood by the Confederate Congress, or by the legislatures of the commonwealths, or by the public generally, that they were to undertake any such problem. It was generally supposed that they were there for the purpose simply of improving the machinery of the Confederate government and increasing somewhat its powers. There was, also, but one legal way for them to proceed in reorganizing the American state as the

original basis of the constitution which they were about to propose, viz; they must send the plan therefor, as a preliminary proposition, to the Confederate Congress, procure its adoption by that body and its recommendation by that body to the legislatures of the commonwealths, and finally secure its approval by the legislature of every commonwealth. The new sovereignty, thus legally established, might then be legally and constitutionally appealed to for the adoption of any plan of government which the convention might choose to propose. The convention did not, however, proceed in any such manner. What they actually did, stripped of all fiction and verbiage, was to assume constituent powers, ordain a constitution of government and of liberty, and demand the plébiscite thereon, over the heads of all existing legally organized powers.1 Had Julius or Napoleon committed these acts, they would have been pronounced coup d'état. Looked at from the side of the people exercising the plébiscite, we term the movement revolution. The convention clothed its acts and assumptions in more moderate language than I have used, and professed to follow a more legal course than I have indicated. The exact form of the procedure was as follows. They placed in the body of the proposed constitution itself a provision declaring that ratification by conventions of the people in nine states (commonwealths) should be sufficient for the establishment of the constitution between the states (commonwealths) so ratifying the same. They then sent the instrument entire to the Confederate Congress, with the direction, couched in terms of advice, that the Congress should pass it along, untouched, to the legislatures of the commonwealths, and that these should pass it along, also untouched, to conventions of the people in each commonwealth, and that when nine conventions should have approved, Congress should take steps to put the new government into

1 Elliot's Debates, Vol. I, pp. 414 ff.; Ibid. Vol. V, pp. 197, 216.

2 United States Constitution, Art. VII.

operation and abdicate. Of course the mass of the people were not at all able to analyze the real character of this procedure. It is probable that many of the members of the convention itself did not fully comprehend just what they were doing. Not many of them had had sufficient education. as publicists to be able to generalize the scientific import of their acts.

Apparently the form of this procedure supplemented rather than violated existing law, except in one point. It might be conceived as adding the approval of the conventions of the people to that of the Confederate Congress and the legislatures of the commonwealths. Really, however, it deprived the Congress and the legislatures of all freedom of action by invoking the plébiscite. It thus placed these bodies under the necessity of affronting the source of their own existence unless they yielded unconditionally to the demands of the convention. And the one point which this theory of the supplementary character of the plébiscite could not cover was the one of transcendent importance, and the real test of the nature of the whole procedure. That point was the declaration of the convention that the assent of the conventions of the people in nine commonwealths should be deemed sufficient for the adoption of the new constitution. The real import of this declaration was confused by the limitation that the new constitution should be regarded as established only for the assenting. It was not clearly seen, at the moment, that the proposition attributed power to the nine to act for the whole thirteen. A little critical analysis will, however, make this easily manifest. The confederate constitution, the existing law, prescribed, as we know, that no alteration should be made in the articles of the confederation except by agreement of the Congress and approval by the legislature of every commonwealth. Now if the new con

1 Articles of Confederation, Art. XIII.

stitution could be adopted by the conventions of the people in nine commonwealths, even though professedly for themselves alone, then and in consequence thereof the old constitution must be destroyed, for the whole thirteen, by the act of the nine. This act would therefore violate the existing law both in spirit and letter, and would stamp the whole procedure as extra-legal; i.e. as illegal. We must, therefore, give up the attempt altogether to find a legal basis for the adoption of the new constitution and have recourse to political science, to the natural and historical conditions of the society and the state. The principle of that science is that the undoubted majority of the political people of any natural political unity possess the sovereign constituting power, and may as truly act for the whole people in building up as tearing down; more truly, in fact, for in political science the only purpose of tearing down is to secure a better building up of the whole structure. This proposition of the convention, therefore, when scientifically explained, really declared by implication that the plébiscite in nine commonwealths should be sufficient approval of the acts of the convention to establish the new constitution over the whole thirteen. Nor did this principle remain mere theory. The confederate constitution was abolished, and the new constitution put into operation when approved by the plébiscite in but eleven commonwealths. Nominally the new system was not yet estab lished for the two non-assenting commonwealths, but the old system was destroyed for them without their consent; and, as we have seen, the same principle which justifies the act of the eleven in reference to the latter procedure not only justifies but requires a coextensive positive, constructive procedure. As a fact, it was but policy which dictated a little patience and secured the necessary result without resort to force.

From this review of the history of the original formation of our present constitution, I contend that the procedure cannot be scientifically comprehended except upon the principle

that the convention of 1787 assumed constituent powers, i.e. assumed to be the representative organization of the American state, the sovereign in the whole system; ordained the constitution of government and of liberty; called for the plebiscite thereon, and fixed the majority necessary for approval. The all-important hermeneutical conclusion from this principle is, that the original construction of the American state cannot be interpreted by juristic methods. Scientifically we must place its genesis in the domain of political history and political science, and follow and explain it by the methods of these sciences.

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