employed by Sidney, and Locke, and Rousseau to define "the social contract," as we shall hereafter see.

Although Mr. Justice Story endeavors to bring discredit on the "explicit and solemn" compacts of the New World, by identifying them with the vague and visionary theories of the Old, yet he is perfectly aware of the difference between the fact in the one case and the hypothesis in the other, whenever it suits his purpose to use such knowledge. Thus, he says, in relation to his own Pilgrim Fathers:-"Before their landing they drew up and signed a voluntary compact of government, forming, if not the first, at least the best authenticated case of an original social contract for the establishment of a nation, which is to be found in the annals of the world. Philosophers and jurists have perpetually resorted to the theory of such a compact, by which to measure the rights and duties of governments and subjects; but for the most part it has been treated as an effort of imagination, unsustained by the history or practice of nations, and furnishing little of solid instruction for the actual concerns of life. It was little dreamed of, that America should furnish an example of it in primitive and almost patriarchal simplicity."* Thus Massachusetts has taken the lead of all the States in the world in the making of social compacts and also in the breaking of them. This last point will, hereafter, be most fully illustrated and proved.

The original draft of the Constitution of Massachusetts was drawn up by John Adams, the second President of the United States, and he certainly entertained no doubt that he was drawing up an "explicit and solemn compact," or reducing the theory of European writers to practice. "It is," says he, "Locke, Sidney, Rousseau, and DeMably reduced to practice." All these celebrated authors on the "social contract" reduced to practice! But it is all in

*Story on the Constitution, Book i., chap. iii., p. 37. †John Adams's Works, Vol. iv., p. 216.

vain. For if the fiction is reduced to fact it is only that the fact may be again reduced to fiction. Massachusetts keep her bargains! Even her most gifted sons, her Storys and her Websters, exert all their genius and exhaust the stores of their erudition to explain away and reduce to a mere nullity her most solemn social compacts, both State and Federal! The theory becomes a fact, and this fact calls itself "an original, explicit, and solemn compact." But then, as interest or power dictates, the fact is explained away, and there ends all the solemn farce.

"Majorities, in a democracy, do not rely on Constitutions, do not care for Constitutions. They rely on numbers and the strong arm." They spurn, with more than imperial scorn, the limitations and restraints which written Constitutions or judicial decisions would impose on their sovereign will and pleasure. They respect such paper checks, such dictates of reason and justice, just about as much as the raging billows of the ocean respected the line which Canute drew upon its shores. In the strong language of De Tocqueville, nothing can restrain them from crushing whatever lies in their path. This has been most emphatically and pre-eminently true of the Northern majority in every instance in which it has gained the ascendency in the grand Democratic Republic of the New World. Cruel as death, and inexorable as the grave, it has moved right on to its object, regardless of the outcries and "complaints of those whom it crushes upon its path."* 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.

Its character is most perfectly described by a great Northern politician; by one who, indeed, as a distinguished member of the Convention of 1787, helped to frame the Constitution of the United States. What, then, is it in

* De Tocqueville's "Democracy in America."

his view? Is it the wild beast of Plato? Is it "the armed rhinoceros or the Hyrcan tiger?" In more respectful language he simply calls it "the legislative lion;" but yet, seeming to know its nature, as Falstaff knew the true Prince, by instinct, he paints it beforehand with the pencil of a master. "But, after all," says he, "what does it signify that men should have a written Constitution, containing unequivocal provisions and limitations? The legislative lion will not be entangled in the meshes ef a logical net. Legislation will always make the power which it wishes to exercise, unless it be so arranged as to contain within itself the sufficient check. Attempts to restrain it from outrage, by other means, will only render it the more outrageous. The idea of binding legislators by oaths is puerile. Having sworn to exercise the powers granted, according to their true intent and meaning, they will, when they feel a desire to go further, avoid the shame, if not the guilt of perjury, by swearing the true intent and meaning to be, according to their comprehension, that which suits their purpose.' 11* Here, in one sentence, we have the whole history of the Northern power in advance; with all its hypocrisy, violation of oaths, and sovereign contempt of its most solemn compacts and engagements. Is it any wonder, then, that the writer. should have looked forward, with such sad foreboding, "to the catastrophe of the tragico-comical drama,"† in the earliest stages of which he himself had acted so conspicuous a part?

"Life and Writings of Governor Morris," vol. iii., p. 323. † Ibid., p. 203..

CHAPTER VIII.

The Constitution of 1787 a Compact between the States.-The Facts of the Case.

IN discussing the question of the preceding chapters, whether the Constitution was a compact, I introduced much matter which incidentally showed that it was a compact between the States. In like manner, I shall, in proving that the States are the parties to the Constitution, produce much additional evidence that it is a compact. In order to show that the States are the parties to the constitutional compact, let us consider-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.

1. The facts of the case. "It appears to me," says Mr. Webster, "that the plainest account of the establishment of this government presents the most just and philosophical view of its foundation." True, very true. There is, indeed, no proposition in the celebrated speech of Mr. Webster, nor in any other speech, more true than this; and besides, it goes directly to the point. For the great question which Mr. Webster has undertaken to discuss relates not so much to the superstructure of the government as to "its foundation."

This is the question: How was the Constitution made or ordained, and on what does it rest? Bearing this in

⚫ mind, let us proceed to consider, first, his plain account of the establishment of the government of the United States, and then the arguments in favor of his position.

First, let us consider, item by item, his plain account. "The people of the several States," says he, "had their separate governments, and between the States there also existed a Confederation." True. "With this condition of things the people were not satisfied, as the Confederation had been found not to fulfil its intended objects. It was proposed, therefore, to erect a new common government, which should possess certain definite powers, such as regarded the property of the people of all the States, and to be formed upon the general model of American Constitutions." This is not so plain. It seems partly true and partly false. We are told that the people had discovered the defects of the Confederation, and were consequently not satisfied with it. Alexander Hamilton, a contemporary witness, tells a very different story. "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."* It was only "when the dangers of the war were removed," and the "men of intelligence" could be heard, that the people saw "what they had suffered, and what they had yet to suffer from a feeble form of government."+

"There was no need of discerning men," as Hamilton truly said, "to convince the people of their unhappy condition." But they did need to be instructed respecting the causes of their misery. So far was the great body of the people from having discerned for themselves the causes of their troubles that Mr. Madison ascribes his ability to make this discovery to his peculiar situation. "Having *Works, vol. ii., p. 445.

† Ibid.