Our Confederate Ancestors: Admiral Raphael Semmes, Memoirs of Service Afloat, Chapters 1 and 2

A Series on the Daring Exploits of Our Confederate Ancestors in the War Between the States.

Chapters 1 and 2 of the first 6 of

Memoirs of Service Afloat
During the War Between the States
by Admiral Raphael Semmes

1. A Brief Historical Retrospective
2. The Nature of the American Compact

Admiral Raphael Semmes, commander of the legendary raider CSS Alabama.
Admiral Raphael Semmes, commander of the legendary raider CSS Alabama.
Inscription by Adm. Raphael Semmes in Memoirs of Service Afloat During the War Between the States.

Publisher's Note: Adm. Raphael Semmes, famed commander of the legendary Confederate raider, Alabama, wrote a brief, concise and brilliant history of the Articles of Confederation, the establishment of the U. S. Constitution and the right of secession, in the first six chapters of his 833 page book, Memoirs of Service Afloat During the War Between the States. The CSS Alabama took 65 prizes and is the most successful commerce raider in maritime history. Semmes, from Charles County, Maryland was in the U.S. Navy from 1826 to 1861. He fought in the Mexican War as commander of the USS Somers. He served in the Confederate States Navy from 1861 to 1865, first as commander of the raider CSS Sumter, causing 18 losses to the Union, then the CSS Alabama. Alabama was originally the newly built British steamer Enrica. After Alabama's dazzling career, she was sunk by the USS Kearsarge commanded by John Ancrum Winslow near Cherbourg, France in one of the most famous naval battles of the war, June 19, 1864. Alabama was at a disadvantage because of deteriorated gun powder and shell fuses, and a rare day of poor aim by her gunners. Semmes and survivors made their way back to America and finally Richmond where he commanded the ironclad CSS Virginia II of the James River Squadron. After Richmond fell, he became a temporary brigadier general, informally, and his sailors became an infantry unit  known as the "Naval Brigade." Most of them ended up with Johnston's army near Durham Station, North Carolina and surrendered to Maj. Gen. William T. Sherman April 26, 1865. After the war, Semmes worked as a college professor at what is today LSU, a judge, a newspaper editor, and author. He died August 30, 1877 at age 67 at Mobile, Alabama and is buried there with his wife Anne E. Spencer Semmes. The town of Semmes, Alabama is named for Raphael Semmes as were several United States Navy ships. Publishing information: Baltimore: Kelly, Piat & Co., 1869. For more information on Raphael Semmes visit the website of the Admiral Raphael Semmes Camp #11, SCV, in Mobile Alabama: https://www.scvsemmes.org/index.html. Several of the pictures in this post come from their outstanding website.

CSS Alabama, the most successful commerce raider in maritime history.
CSS Alabama, the most successful commerce raider in maritime history.
Chapter I.
A Brief Historical Retrospect.

The disruption of the American Union by the war of 1861 was not an unforeseen event. Patrick Henry, and other patriots who struggled against the adoption of the Federal Constitution by the Southern States, foretold it in burning words of prophecy; and when that instrument was adopted, when the great name and great eloquence of James Madison had borne down all opposition, Henry and his compatriots seemed particularly anxious that posterity should be informed of the manly struggle which they had made.

Henry said,

The voice of tradition, I trust, will inform posterity of our struggles for freedom. If our descendants be worthy of the name of Americans, they will preserve, and hand down to the latest posterity, the transactions of the present times; and though I confess my explanations are not worth the hearing, they will see I have done my utmost to preserve their liberty.

The wish of these patriotic men has been gratified. The record of their noble deeds, and all but inspired eloquence, has come down to posterity, and some, at least, of their descendants, "worthy of the name of American," will accord to them the foremost rank in the long list of patriots and sages who illustrated and adorned our early annals.

But posterity, too, has a history to record and hand down. We, too, have struggled to preserve our liberties, and the liberties of those who are to come after us; and the history of that struggle must not perish. The one struggle is but the complement of the other, and history would be incomplete if either were omitted.

Events have vindicated the wisdom of Henry, and those who struggled with him against the adoption of the Federal Constitution.

Events will equally vindicate the wisdom of Jefferson Davis, and other Confederate patriots, who endeavored to preserve that Constitution, and hand it down, unimpaired, to their posterity.

The wisdom of a movement is not always to be judged by its success.

Principles are eternal, human events are transitory, and it sometimes takes more than one generation or one revolution to establish a principle.

At first sight, it may appear that there is some discordance between  Patrick Henry and Jefferson Davis, as the one struggled against the adoption of the Constitution, and the other to preserve it.

But they were, in fact, both engaged in a similar struggle; the object of both being to preserve the sovereignty of their respective States.

Henry did not object so much to the nature of the partnership, into which his State was about to enter, as to the nature of the partners with whom she was about to contract.

He saw that the two sections were dissimilar, and that they had different and antagonistic interests, and he was unwilling to trust to the bona fides of the other contracting party. "I am sure," said he,

that the dangers of this system are real, when those who have no similar interests with the people of this country are to legislate to us -- when our dearest interests are to be left in the hands of those whose advantage it will be to infringe them.

The North, even at that early day, was in a majority in both houses of Congress; it would be for the advantage of that majority to infringe the rights of the South; and Henry, with much more knowledge of human nature than most of the Southern statesmen of his era, refused to trust that majority.

This was substantially the case with Jefferson Davis and those of us who followed his lead. We had verified the distrust of Henry.

What had been prophecy with him, had become history with us. We had had experience of the fact, that our partner-States of the North, who were in a majority, had trampled upon the rights of the Southern minority, and we desired, as the only remedy, to dissolve the partnership into which Henry had objected to entering -- not so much because of any defect in the articles of copartnership, as for want of faith in our copartners.

This was the wisdom of Jefferson Davis and his compatriots, which, I say, will be vindicated by events. A final separation of these States must come, or the South will be permanently enslaved.

We endeavored to bring about the separation, and we sacrificed our fortunes, and risked our lives to accomplish it.

Like Patrick Henry, we have done our "utmost to preserve our liberties;" like him, we have failed and like him, we desire that our record shall go down to such of our posterity as may be "worthy of the name of Americans."

The following memoirs are designed to commemorate a few of the less important events of our late struggle; but before I enter upon them, I deem it appropriate to give some "reason for the faith" that was in us, of the South, who undertook the struggle.

The judgment which posterity will form upon our actions will depend, mainly, upon the answers which we may be able to give to two questions: First, Had the South the right to dissolve the compact of government under which it had lived with the North? and, secondly, Was there sufficient reason for such dissolution?

I do not speak here of the right of revolution -- this is inherent in all peoples, whatever may be their form of government. The very term "revolution" implies a forcible disruption of government, war, and all the evils that follow in the train of war.

The thirteen original Colonies, the germ from which have sprung these States, exercised the right of revolution when they withdrew their allegiance from the parent country.

Not so with the Southern States when they withdrew from their copartnership with the Northern States. They exercised a higher right.

They did not form a part of a consolidated government, as the Colonies did of the British Government.

They were sovereign, equally with the Northern States, from which they withdrew, and exercises, as they believed, a peaceful right, instead of a right of revolution.

Had, then, the Southern States the peaceful right to dissolve the compact of government under which they had lived with the North?

A volume might be written in reply to this question, but I shall merely glance at it in these memoirs, referring the student to the history of the formation of the old Confederacy, prior to the adoption of the Constitution of the United States; to the "Journal and debates of the Convention of 1787," that formed this latter instrument; to the debates of the several State Conventions which adopted it, to the "Madison Papers," to the "Federalists," and to the late very able work of Dr. Bledsoe, entitled "Is Davis a Traitor?"

It will be sufficient for the purpose which I have in view -- that of giving the reader a general outline of the course of reasoning, by which Southern men justify their conduct in the late war -- to state the leading features of the compact of government which was dissolved, and a few of its historical surroundings, about which there can be no dispute.

The close of the War of Independence of 1776 found the thirteen original Colonies, which had waged that war, sovereign and independent States.

They had, for the purpose of carrying on that war, formed a league, or confederation, and the articles of this league were still obligatory upon them.

Under these articles, a Federal Government had been established, charged with a few specific powers, such as conducting the foreign affairs of the Confederacy, the regulation of commerce, &c.

At the formation of this Government, it was intended that it should be perpetual, and was so declared.

It lasted, notwithstanding, only a few years, for peace was declared in 1783, and the perpetual Government ceased to exist in 1789.

How did it cease to exist? By the secession of the States.

Soon after the war, a convention of delegates met at Annapolis in Maryland, sent thither by the several States, for the purpose of devising some more perfect means of regulating commerce. This was all the duty with which they were charged.

Upon assembling, it was found that several of the States were not represented in this Convention, in consequence of which, the Convention adjourned without transacting any business, and recommended, in an address prepared by Alexander Hamilton, that a new convention should be called at Philadelphia, with enlarged powers.

"The Convention," says Hamilton,

are more naturally led to this conclusion, as in their reflections on the subject, they have been induced to think, that the power of regulating trade is of such comprehensive extent, and will enter so far into the great system of the Federal Government, that to give it efficacy, and to obviate questions and doubts concerning its precise nature and limits, may require a corresponding adjustment in other parts of the Federal system. That these are important defects in the system of the Federal Government is acknowledged by the acts of those States, which have concurred in the present meeting. That the defects, upon closer examination, may be found greater and more numerous than  even these acts imply, is at least, so far probable, from the embarrassments which characterize the  present state of our national affairs, foreign and domestic, as may reasonably be supposed to merit a deliberate and candid discussion, in some mode which will unite the sentiments and counsels of all the States.

The reader will observe that the Government of the States, under the Articles of Confederation, is called a "Federal Government," and that the object proposed to be accomplished by the meeting of the new Convention at Philadelphia, was to amend the Constitution of that Government.

Northern writers have sought to draw a distinction between the Government formed under the Articles of Confederation, and that formed by the Constitution of the United States, calling the one a league, and the other a government.

Here we see Alexander Hamilton calling the Confederation a government -- a Federal Government.

It was, indeed, both a league and a government, as it was formed by sovereign States; just as the Government of the United States is both a league and a government, for the same reason.

The fact that the laws of the Confederation, passed in pursuance of its League, or Constitution, were to operate upon the States; and the laws of the United States were to operate upon the individual citizens of the States, without the intervention of State authority, could make no difference.

This did not make the latter more a government than the former. The difference was a mere matter of detail, a mere matter of machinery -- nothing more. It did not imply more or less absolute sovereignty in the one case, than in the other.

Whatever of sovereignty had been granted, had been granted by the States, in both instances.

The new convention met in Philadelphia, on the 14th of May, 1787, with instructions to devise and discuss "all such alterations, and further provisions as may be necessary to render the Federal Constitution adequate to the exigencies of the Union."

We see, thus, that the very Convention which framed the Constitution of the United States, equally called the Articles of Confederation a Constitution.

It was, then, from a Constitutional, Federal Government, that the States seceded when they adopted the present Constitution of the United States!

A Convention of the States assembled with powers only to amend the Constitution; instead of doing which, it abolished the old form of government altogether, and recommended a new one, and no one complained.

As each State formally and deliberately adopted the new government, it was formally and deliberately seceded from the old one; and yet no one heard any talk of a breach of faith, and still less of treason.

The new government was to go into operation when nine States should adopt it.

But there were thirteen States, and if nine States only acceded to the new government, the old one would be broken up, as to the other four States, whether these would or not, and they wold be left to provide for themselves.

It was by no means the voluntary breaking up of a compact, by all the parties to it.

It was broken up piece-meal, each State acting for itself, without asking the consent of the others; precisely as the Southern States acted, with a view to the formation of a new Southern Confederacy.

So far from the movement being unanimous, it was a long time before all the States came into the new government.

Rhode Island, one of the Northern States, which hounded on the war against the Southern States, retained her separate sovereignty for two years before she joined the new government, not uttering one word of complaint, during all that time, that the old government, of which she had been a member, had been unduly broken up, and that she had been left to shift for herself.

Why was this disruption of the old government regarded as a matter of course?

Simply because it was a league, or treaty, between sovereign States, from which any one of the States had the right to withdraw at any time, with out consulting the interest or advantage of the others.

But, say the Northern States, the Constitution of the United States is a very different thing from the Articles of Confederation. It was formed, not by the States, but by the people of the United States in the aggregate, and made all the States one people, one government. It is not a compact, or league between the States, but an instrument under which they have surrendered irrevocably their sovereignty. Under it, the Federal Government has become the paramount authority, and the States are subordinate to it.

We will examine this doctrine, briefly, in another chapter.

Chapter II.
The Nature of the American Compact.

The two principal expounders of the Constitution of the United States, in the North have been Daniel Webster and Joseph Story, both from Massachusetts.

Webster was, for a long time, a Senator in Congress, and Story a Justice of the Supreme Court of the United States. The latter has written an elaborate work on the Constitution, full of sophistry, and not always very reliable as to its facts.

The great effort of both these men has been to prove, that the Constitution is not a compact between the States, but an instrument of government, formed by the people of the United States, as contra-distinguished from the States.

They both admit, that if the Constitution were a compact between the States, the States would have a right to withdraw from the compact -- all agreements between States, in their sovereign capacity, being, necessarily, of no more binding force than treaties.

These gentlemen are not always very consistent, for they frequently fall into the error of calling the Constitution a compact, when they are not arguing this particular question; in short, it is, and it is not a compact, by turns, according to the use they intend to make of the argument.

Mr. Webster's doctrine of the Constitution, chiefly relied on by Northern men, is to be found in his speech of 1833, in reply to Mr. Calhoun.

It is in that speech that he makes the admission, that if the Constitution of the United States is a compact between the States, the States have the right to withdraw from it at pleasure. He says,

If a league between sovereign powers have no limitation as to the time of duration, and contains nothing making it perpetual, it subsists only during the good pleasure of the parties, although no violation be complained of. If in the opinion of either party it be violated, such party may say he will no longer fulfill its obligations, on his part, but will consider the whole league or compact as at an end, although it might be one of its stipulations that it should be perpetual.

Capt. Raphael Semmes and 1st Lt. John Kell on CSS Alabama, 1863.
Capt. Raphael Semmes and 1st Lt. John Kell on CSS Alabama, 1863.

In his "Commentaries on the Constitution," Mr. Justice Story says,

The obvious deductions which may be, and indeed have been drawn, from considering the Constitution a compact between States, are, that it operates as a mere treaty, or convention between them, and has an obligatory force no longer than suits their pleasure, or their consent continues." The plain principles of public law, thus announced by these distinguished jurists, cannot be controverted. If sovereign States make a compact, although the object of the compact be the formation of a new government for their common benefit, they have the right to withdraw from that compact at pleasure, even though, in the words of Mr. Webster, "it might be one of its stipulations that it should be perpetual.

There might, undoubtedly, be such a thing as State merger; that is, that two States, for instance, might agree that the sovereign existence of one of them should be merged in the other. In which case, the State parting with its sovereignty could never reclaim it by peaceable means.

But when a State shows no intention of parting with its sovereignty, and, in connection with other States, all equally jealous of their sovereignty with herself, only delegates a part of it -- never so large a part, if you please -- to the common agent, for the benefit of the whole, there can have been no merger.

This was eminently the case with regard to these United States.

No one can read the "Journal and debates of the Philadelphia Convention," or those of the several State Conventions to which the Constitution was submitted for adoption, without being struck with the scrupulous care with which all the States guarded their sovereignty.

The Northern States were quite as jealous, in this respect, as the Southern States.

Next to Massachusetts, New Hampshire has been, perhaps, the most fanatical and bitter of the former States, in the prosecution of the late war against the South. That State, in her Constitution, adopted in 1792, three years after the Federal Constitution went into operation, inserted the following provision, among others, in her declaration of principles:

The people of this Commonwealth have the sole and exclusive right of governing themselves as a free, sovereign, and independent State; and of and forever hereafter shall exercise and enjoy every power, jurisdiction, and right which is not, or may not hereafter be, by them, expressly delegated to the United States.

Although it was quite clear that the States, when they adopted the Constitution of the United States, reserved, by implication, all the sovereign power, rights, and privileges that had not been granted away -- as a power not given is necessarily withheld -- yet so jealous were they of the new government they were forming, that several of them insisted, in their acts of ratification, that the Constitution should be so amended as explicitly to declare this truth, and this put it beyond cavil in the future.

Massachusetts expressed herself as followed, in connection with her ratification of the Constitution:

As it is the opinion of this Convention, that certain amendments and alterations in said Constitution would remove the fears, and quiet the apprehensions of the good people of the Commonwealth, and more effectually guard against an undue administration of the Federal Government, the Convention do, therefore, recommend that the following alteration and provisions be introduced and in said Constitution: First, that it be explicitly declared, that all powers not delegated by the aforesaid Constitution are reserved to the several States, to be by them exercised.

Webster and Story had not yet arisen in Massachusetts, to teach the new doctrine that the Constitution had been formed by the "People of the United States," in contra-distinction to the people of the States.

Massachusetts did not speak in the name of any such people, but in her own name. She was not jealous of the remaining people of the United States, as fractional parts of a whole, of which she was herself a fraction, but she was jealous of them as States; as so many foreign peoples, with whom she was contracting.

The powers not delegated were to be reserved to those delegating them, to wit: the "several States;" that is to say, to each and every one of the States.

Virginia fought long and sturdily against adopting the Constitution at all.

Henry, Mason, Tyler, and a host of other giants raised their powerful voices against it, warning their people, in thunder tones, that they were rushing upon destruction.

Tyler even went so far as to say that "British tyranny would have been more tolerable."

So distasteful to her was the foul embrace that was tendered her, that she not only recommended an amendment of the Constitution, similar to that which was recommended by Massachusetts, making explicit reservation of her sovereignty, but she annexed a condition to her ratification, to the effect that she retained the right to withdraw the powers which she had granted, "whenever the same shall be perverted to her injury or oppression."

North Carolina urged the following amendment -- the same, substantially, as that urged by Virginia and Massachusetts:

That each State in the Union shall respectively [not aggregately] retain every power, jurisdiction, and right which is not by this Constitution delegated to the Congress of the United States, or to the departments of the Federal Government.

Pennsylvania guarded her sovereignty by insisting upon the following amendment:

All the rights of sovereignty which are not, by the said Constitution, expressly and plainly vested in the Congress, shall be deemed to remain with, and shall be exercised by the several States in the Union.

The result of this jealousy on the part of the States was the adoption of the 10th amendment to the Constitution of the United States as follows:

The powers not delegated to the United States, by the Constitution, nor prohibited by it to the States, are reserved to the States, or to the people.

It is thus clear beyond doubt, that he States not only had no intention of merging their sovereignty in the new government they were forming, but that they took special pains to notify each other, as well as their common agent, of the fact.

The language which I have quoted, as used by the States, in urging the amendments to the Constitution proposed by them, was the common language of that day.

The new government was a federal or confederate government -- in the "Federalist," it is frequently called a "Confederation" -- which had been created by the States for their common use and benefit; each State taking special pains, as we have seen, to declare that it retained all the sovereignty which it had not expressly granted away.

And yet, in face of these facts, the doctrine has been boldly declared, in our day, that the Constitution was formed by the people of the United States in the aggregate, as one nation, and that it has a force and vitality independent of the States, which the States are incompetent to destroy!

The perversion is one not so much of doctrine as of history. It is an issue of fact which we are to try.

CSS Alabama, Cape Town, 12 August 1863.
CSS Alabama, Cape Town, 12 August 1863.

It is admitted, that if the fact be as stated by our Northern brethren, the conclusion follows: It is, indeed, quite plain, that if the States did not create the Federal Constitution, they cannot destroy it.

But it is admitted, on the other hand, by both Webster and Story, as we have seen, that if they did create it, they may destroy it; nay, that any one of them may destroy it as to herself; that is, may withdraw from the compact at pleasure, with or without reason.

It is fortunate for us of the South that the issue is so plain, as that it may be tried by the record.

Sophistry will sometimes overlie reason and blind men's judgment for generations; but sophistry, with all its ingenuity, cannot hide a fact.

The speeches of Webster and the commentaries of Story have been unable to hide the fact of which I speak; it stands emblazoned on every page of our constitutional history.

Every step that was taken toward the formation of the Constitution of the United States, from its inception to its adoption, was taken by the States, and not by the people of the United States in the aggregate.

There was no such people known as the people of the United States, in the aggregate, at the time of the formation of the Constitution.

If there is any such people now, it was formed by the Constitution.

But this is not the question. The question now is, who formed the Constitution, not what was formed by it?

If it was formed by the States, admit our adversaries, it may be broken by the States.

The delegates who met at Annapolis were sent thither by the States, and not by the people of the United States.

The Convention of 1787, which formed the Constitution, was equally composed of members sent to Philadelphia by the States.

James Madison was chosen by the people of Virginia, and not by the people of New York; Alexander Hamilton was chosen by the people of New York, and not by the people of Virginia.

Every article, section, and paragraph of the Constitution was voted for, or against, by States; the little State of Delaware, not much larger than a single county of New York, offsetting the vote of that great State.

And when the Constitution was formed, to whom was it submitted for ratification?

Was there any convention of the people of the United States in the aggregate, as one nation, called for the purpose of considering it?

Did not each State on the contrary, call its own convention?

And did not some of the States accept it, and some of them refuse to accept it?

It was provided that when nine States should accept it, it should go into operation; and it pretended that the vote of these nine States was to bind the others?

Is it not a fact, on the contrary, that the vote of eleven States did not bind the other two?

Where was that great constituency, composed of the people of the United States in the aggregate, as one nation, all this time?

"But," say those who are opposed to us in this argument, "look at the instrument itself, and you will see that it was framed by the people of the United States, and not by the States.

Does not its Preamble read thus: 'We, the people of the United States, in order to form a more perfect Union, &c., do ordain and establish this Constitution for the United States of America'?"

Perhaps there has never been a greater literary and historical fraud practiced upon any people, than has been attempted in the use to which these words have been put.

And, perhaps, no equal number of reading and intelligent men has ever before submitted so blindly and docilely to one imposed upon by literary quackery and the legerdemain of words, as our fellow-citizens of the North have in accepting Webster's and Story's version of the preamble of the Constitution.

A brief history of the manner, in which the words, "We, the people," &c., came to be adopted by the Convention which framed the Constitution, will sufficiently expose the baldness of the cheat.

The only wonder is, that such men as Webster and Story should have risked their reputations with posterity, on a construction which may so easily be shorn to be a falsification of the facts of history.

Mr. Webster, in his celebrated speech in the Senate, in 1833, in reply to Mr. Calhoun, made this bold declaration: "The Constitution itself, in its very front, declares, that it was ordained and established by the people of the United States in the aggregate!"

From that day to this, this declaration of Mr. Webster has been the chief foundation on which all the constitutional lawyers of the North have built their arguments against the rights of the States as sovereign copartners.

If the Preamble of the Constitution stood alone, without the lights of contemporaneous history to reveal its true character, there might be some force in Mr. Webster's position; but, unfortunately for him and his followers, he has misstated a fact.

It is not true, as every reader of constitutional history must know, that the Constitution of the United States was ordained by the people of the United States in the aggregate; nor did the Preamble to the Constitution mean to assert that it was true.

The great names of Webster, and Story have been lent to a palpable falsification of history, and as a result of that falsification, a great war has ensued, which has sacrificed its hecatomb of victims, and desolated, and nearly destroyed an entire people.

The poet did not say, without reason, that "words are things."

Now let us strip off the disguises worn by these wordmongers, and see where the truth really lies.

Probably some of my readers will learn, for the first time, the reasons which induced the framers of the Constitution to adopt the phraseology, "We, the people," &c., in the formation of their Preamble to that instrument.

In the original draft of the Constitution, the States, by name, were mentioned, as had been done in the Articles of Confederation. The States had formed the old Confederation, the States were equally forming the new Confederation; hence the Convention naturally followed in their Preamble the form which had been set them in the old Constitution, or Articles.

This Preamble, purporting that the work of forming the new government was being done by the States, remained at the head of the instrument during all the deliberations of the Convention, and no one member ever objected to it.

It expressed a fact which no one thought of denying. it is thus a fact beyond question, not only that the Constitution was framed by the States, but that the Convention so proclaimed in "front of the instrument."

Having been framed by the States, was it afterward adopted, or "ordained and established," to use the words of Mr. Webster, by the people of the United States, in the aggregate, and was this the reason why the words were changed?

There were in the Convention several members in favor of submitting the instrument to the people of the United States in the aggregate, and thereby accomplishing their favorite object of establishing a consolidated government -- Alexander Hamilton and Gouverneur Morris among the number.

On the "Journal of the Convention," the following record is found: "Gouverneur Morris moved that the reference of the plan [i.e. of the Constitution] be made to one General Convention, chosen and authorized by the people, to consider, amend, and establish the same."

Thus the question, as to who should "ordain and establish" the Constitution, whether it should be the people in the aggregate, or the people of the States, was clearly presented to the Convention.

How did the Convention vote on this proposition?

The reader will perhaps be surprised to learn, that the question was not even brought to a vote, for want of a second; and yet this is the fact recorded by the Convention.

The reader who has read Mr. Madison's articles in the "Federalist," and his speeches before the Virginia Convention, in favor of the ratification of the Constitution, will perhaps be surprised to learn that he, too, made a somewhat similar motion.

He was not in favor, it is true, of referring the instrument for adoption to a General Convention of the whole people, alone, but he was in favor of referring it to such a Convention, in connection with Conventions to be called by the States, thus securing a joint or double ratification, by the people of the United States in the aggregate, and by the States; the effect of which would have been to make the new government a still more complex affair, and to muddle still further the brains of Mr. Webster and Mr. Justice Story.

But this motion failed also, and the Constitution was referred to the States for adoption.

But now a new question arose, which was, whether the Constitution was to be "ordained and established" by the legislatures of the States, or by the people of the States in Convention.

All were agreed, as we have seen, that the instrument should be referred to the States. This had been settled; but there were differences of opinion as to how the States should act upon it.

Some were in favor of permitting each of the States to choose, for itself, how it would ratify it; others were in favor of referring it to the legislatures, and others, again, to the people of the States in Convention.

It was finally decided that it should be referred to Conventions of the people, in the different States.

This being done, their work was completed, and it only remained to refer the rough draft of the instrument to the "Committee on Style," to prune and polish it a little -- to lop off a word here, and change or add a word there, the better to conform the language to the sense, and to the proprieties of grammar and rhetoric.

The Preamble, as it stood, as one presented a difficulty.

All the thirteen States were named in it as adopting the instrument, but it had been provided, in the course of its deliberations by the Convention, that the new government should go into effect if nine States adopted it.

Who could tell which these nine States would be? It was plainly impossible to enumerate all the States -- for all of them might not adopt it -- or any particular number of them, as adopting the instrument.

Further, it having been determined, as we have seen, that the Constitution should be adopted by the people of the several States, as contra-distinguished from the legislatures of the States, the phraseology of the Preamble must be made to express this idea also.

To meet these two new demands upon the phraseology of the instrument, the Committee on Style adopted the expression, "We, the people of the United States," -- meaning, as every one must see, "We, the people of the several States united by this instrument."

And this is the foundation that the Northern advocates of a consolidated government build upon, when they declare that the people of the United States in the aggregate, as one nation, adopted the Constitution, and thus gave the fundamental law to the States, instead of the States giving it to the Federal Government.

It is well known that his phrase, "We, the people," &c., became a subject of discussion in the Virginia ratifying Convention.

Patrick Henry, with the prevision of a prophet, was, as we have seen, bitterly opposed to the adoption of the Constitution.

He was its enemy a l'outrance. Not having been a member of the Convention, of 1787, that framed the instrument, and being unacquainted with the circumstances above detailed, relative to the change which had been made in the phraseology of its Preamble, he attacked the Constitution on the very ground since assumed by Webster and Story, to wit: that the instrument itself proclaimed that it had been "ordained and established" by the people of the United States in the aggregate, instead of the people of the States.

Mr. Madison replied to Henry on this occasion.

Madison had been in the Convention, knew, of course, all about the change of phraseology in question, and this was his reply:

The parties to it [the Constitution] were the people, but not the people as composing one great society, but the people as composing thirteen sovereignties. If it were a consolidated government,

continued he,

the assent of a majority of the people would be sufficient to establish it. But it was to be binding on the people of a State only by their separate consent.

There was, of course, nothing more to be said, and the Virginia Convention adopted the Constitution.

Madison has been called the Father of the Constitution.

Next to him, Alexander Hamilton bore the most conspicuous part in procuring it to be adopted  by the people.

Hamilton, as is well known, did not believe much in republics; and least of all did he believe in federal republics.

His great object was to establish a consolidated republic, if we must have a republic as all. He labored zealously for this purpose, but failed.

The States, without an exception, were in favor of the federal form; and no one knew better than Hamilton the kind of government which had been established.

Now let us hear what Hamilton, an unwilling, but an honest witness, says on this subject.

Of the eighty-five articles in the "Federalist," Hamilton wrote no less than fifty.

Having failed to procure the establishment of a consolidated government, his next great object was, to procure the adoption by the States of the present Constitution, and to his task, accordingly, he now address his great intellect and powerful energies.

In turning over the pages of the "Federalist," we can scarcely go amiss in quoting Hamilton, to the point that the Constitution is a compact between the States, and not an emanation from the people of the United States in the aggregate.

Let us take up the final article, for instance, the 85th. In this article we find the following expressions:

The compacts which are to embrace thirteen distinct States in a common bond of amity and Union, must necessarily be compromises of as many dissimilar interests and inclinations." Again: "The moment an alteration is made in the present plan, it becomes, to the purpose of adoption, a new one, and must undergo a new decision of each State. To its complete establishment throughout the Union, it will therefore, require the concurrence of thirteen States.

And again:

Every Constitution for the Untied States must, inevitably, consist of a great variety of particulars, in which thirteen Independent States are to be accommodated in their interests, or opinions of interests. * * * Hence the necessity of molding and arranging all the particulars which are to compose the whole in such a manner as to satisfy all the parties to the compact.

Thus, we do not hear Hamilton, any more than Madison, talking of a "people of the United States in the aggregate" as having anything to do with the formation of the new charter of government. He speaks only of States, and of compacts made or to be made by States.

In view of the great importance of the question, whether it was the people of the United States in the aggregate who "ordained and established" the Constitution, or the States, -- for this, indeed, is the whole gist of the controversy between the North and the South, -- I have dealt somewhat at length on the subject, and had recourse to contemporaneous history; but this was scarcely necessary.

The Constitution itself settled the whole controversy.

The 7th article of that instrument reads as follows: "The ratification of the Conventions of nine States shall be sufficient  for the establishment of the Constitution between the States so ratifying the same."

How is it possible to reconcile this short, explicit, and unambiguous provision with the theory I am combating?

The Preamble, as explained by the Northern consolidationists, and this article, cannot possibly stand together. It is not possible that the people of the United States in the aggregate, as one nation, "ordained and established" the Constitution, and that the States ordained and established it at the same time: for there was but one set of Conventions called, and these Conventions were called by the States, and acted in the names of the States.

Mr. Madison did, indeed, endeavor to have the ratification made in both modes, but this motion in the Convention to his effect failed, as we have seen.

Further, how would the Constitution be biding only between the States that ratified it, if it was not ratified -- that is, not "ordained and established" -- by them at all, but by the people of the United States in the aggregate?

As remarked by Mr. Madison, in the Virginia Convention, a ratification by the people, in the sense in which this term is used by the Northern  consolidationists, would have bound all the people, and there would have been no option left the dissenting States.

But the 7th article says that they shall have an option, and that the instrument is to be binding only between such of them as ratify it.

With all due deference, then, to others who have written upon this vexed question, and who have differed from me in opinion, I must insist that the proof is conclusive that the Constitution is a compact between the States; and this being so, we have the admission of both Mr. Webster and Justice Story that any one of the States may withdraw from it at pleasure.

Marker at grave of Adm. Semmes and his wife.
Marker at grave of Adm. Semmes and his wife.
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2 Comments

  1. Gene – Another interesting article. I was unaware that Raphael Semmes had generated this analysis of the Constitution. Apart from his naval career, I have also studied his pre-war efforts to purchase munitions from northern manufacturers for southern states. I use this segue to let you know that the article that I mentioned in a previous communication has been published in Military Images magazine. The current issue is working its way through the postal system as I write this. I have not yet received the issue, but have extras coming my way. I would be pleased to send one to you for your interest. The article focuses James T. Ames (Ames Mfg Co) and his activities that influenced and affected the Confederacy, starting in about 1845. The article may offer some new information relating the cause of the war.

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