king has usurped our sovereignty!"
probably became the cry of the multi-
tudes. The idea was clear: "We no
longer consent to George III."
The men aboard the Mayflower had
been deeply instilled with the principles
of sea-law which dictated an on-board
compact. So it was that these first set-
tlers drew up the so-called "Mayflower
Compact," the first of a series of planta-
tion covenants used in the small towns
and communities of New England: "by
virtue hereof to enact, constitute, and
frame such just and equal laws, ordi-
nances, acts, constitutions, and offices,
from time to time, as shall be thought
most meet and convenient for the gen-
eral good of the Colony, unto which we
promise all due submission and obedi-
ence."32
Attempts were made to get the ap-
proval of as many inhabitants of the
countryside as possible. This could only
reflect the belief of those contractors
that the unanimous consent was the
ideal to be sought. It was furthermore
made clear in Massachusetts that depu-
ties chosen by the people were merely
envoys, not legislators. The first Amer-
ican case of proxy was in Maryland and
symbolizes the giant step between pure
democracy and a representative system.
Representation was at first not based
upon principle. Indeed, in Maryland,
it had been considered no more than a
convenience to solve problems of trans-
portation and communication.
With the development of representa-
tion, the idea of tacit consent becomes
increasingly important. The constitu-
tion of Maryland was proclaimed on
November 8, 1776, while the colonies
were deeply involved in the Revolution.
32 From the Mayflower Compact (corrected
to read in twentieth century spelling).
|
A convention had met in Maryland that
August 14, and the resulting constitu-
tion became law without submission to
the voters. Time was vital. The very
success of the Revolution was at stake.
Tacit consent was indeed a factor in
the constitution's acceptance. A polit-
ical consensus existed in the colonies at
that time. Tories escaped by the hun-
dreds to return to England. Other sym-
pathizers of the Crown sought refuge in
Canada. The remaining colonists were
undoubtedly in political accord, at least
in their desire for political independence
from England. Tacit consent within the
State of Maryland in regard to the rati-
fication of her first constitution must
well have played a major role.
The issues of original compact and
tacit consent are of vital relevance to
any study of state sovereignty, state's
rights, and, more specifically, the seces-
sion of the southern states in America,
which brought on the Civil War. An-
drew Jackson stated the problem: "Be-
cause the Union was formed by com-
pact, it is said the parties to that com-
pact may, when they feel themselves
aggrieved, depart from it; but it is pre-
cisely because it is a compact that they
cannot. A compact is an agreement or
a binding obligation."33 It is note-
worthy that Luther Martin, a Mary-
lander, is the author of the federal
Constitution's supremacy clause, which
has been interpreted in two totally con-
tradictory manners.34
It is, however, beyond our scope to
argue for or against nullification. With
33 state papers on nullification 87,
128, 206 (Boston, 1834).
34 (Art. VI). On the one hand, that state
courts have the last word in constitutional in-
terpretation; on the other, the more obvious
view, that the Supreme Court of the United
States has this ultimate jurisdiction.
II
|
