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1. 1 Tucker's Black. Comm. App. note D, p. 140 et seq.
2. Tucker's Black. Comm. App. note D. p. 141.
3. Mr. Jefferson asserts, that the constitution of the United States is a compact between the states. "They entered into a compact," says he, (in a paper designed to be adopted by the legislature of Virginia, as a solemn protest,) "which is called the Constitution of the United States of America, by which they agreed to unite in a single government, as to their relations with each, and with foreign nations, and as to certain other articles particularly specified."a It would, I imagine, be very difficult to point out when, and in what manner, any such compact was made. The constitution was neither made, nor ratified by the states, as sovereignties, or political communities. It was framed by a convention, proposed to the people of the states for their adoption by congress; and was adopted by state conventions, -- the immediate representatives of the people.
a. 4 Jefferson's Corresp. 415.
4. 1 Tucker's Black. Comm. Appx. note D. p. 141.
5. Id. p. 144.
6. Id. 145.
7. 1 Tucker's Black. Comm. App. note D. p. 145.
8. 2 Id. 150. -- These views are very different from those, which Mr. Dane has, with so much force and perspicuity, urged in his Appendix to his Abridgment of the Law, § 2, p. 10, etc.:
| "In order, correctly, to ascertain this rank, his linking together, and this subordination, we must go back as far as January, 1774, when the thirteen states existed constitutionally, in the condition of thirteen British colonies, yet, de facto, the people of them exercised original, sovereign power in their institution in 1774, of the continental congress; and, especially, in June, 1775, then vesting in it the great national powers, that will be described; scarcely any of which were resumed. The result will show, that, on revolutionary principles, the general government was, by the sovereign of this people first create de novo,and de facto instituted; and, by the same acts, the people vested in it very extensive powers, which have ever remained in it, modified and defined by the articles of confederation, and enlarged and arranged anew by the constitution of the United States -- 2d. that the state governments and states, as free and independent states, were, July 4th, 1776, created by the general government, empowered to do it by the people, acting on revolutionary principles, and in their original sovereign capacity; and that all the state governments, as such, have been instituted during the existence of the general government, and in subordination to it, and two thirds of them since the constitution of the United States was ordained and established by all the people thereof in that sovereign capacity. These state governments have been, by the people of each state, instituted under, and, expressly or impliedly, in subordination to the general government, which is expressly recognized by all to be supreme law; and as the power of the whole is, in the nature of things, superior to the power of a part, other things being equal, the power of a state, a part, is inferior to the power of all the states. Assertions, that each of the twenty-four states is completely sovereign, that is, as sovereign as Russia, or France, of course as sovereign as all the states, and that this sovereignty is above judicial cognizance, merit special attention." |
10. Id. 155, 156.
11. Id. 169.
12. Tucker's Black. Comm. note D. p. 170.
13. Id. 170.
14. Many traces of these opinions will be found in the public debates in the state legislatures and in congress at different periods. In the resolutions of Mr. Taylor in the Virginia legislature in 1798, it was resolved, "that this assembly doth explicitly and peremptorily declare, that it views the powers of the federal government as resulting from the compact, to which the states are parties." See Dane's Appendix, p 17. The original resolution had the word "alone" after "states," which was struck out upon the motion of the original mover, it having been asserted in the debate, that the people were parties also, and by some of the speakers, that the people were exclusively parties.
The Kentucky Resolutions of 1797, which were drafted by Mr. Jefferson, declare, "that to this compact [the federal constitution] each state acceded as a state, and is an integral party." North American Review, Oct. 1830, p. 501, 545. In the resolutions of the senate of South Carolina, in Nov. 1817, it is declared, "that the constitution of the United States is a compact between the people of the different states with each other, as separate and independent sovereignties." In Nov. 1799 the Kentucky legislature passed a resolution, declaring, that the federal states had a right to judge of any infraction of the constitution, and, that a nullification by those sovereignties of all unauthorized acts done under color of that instrument is the rightful remedy. North American Review, Id. 503. Mr. Madison, in the Virginia Report of 1800, re-asserts the right of the states, as parties, to decide upon the unconstitutionality of any measure. Report. p. 6, 7, 8, 9. The Virginia legislature, in 1829, passed a resolution, declaring, that "the constitution of the United States being a federative compact between sovereign states, in construing which no common arbiter is known, each state has the right to construe the compact for itself.b Mr. Vice President Calhoun's letter to Gov. Hamilton of Aug. 28, 1832, contains a very elaborate exposition of this among other doctrines.
Mr. Dane, in his Appendix, (§ 3, p. 11,) says, that for forty years one great party has received the constitution, as a federative compact among the states, and the other great party, not as such a compact, but in the main, national and popular. The grave debate in the Senate of the United States, on Mr. Foot's resolution, in the winter of 1830, deserves to be read for its able exposition of the doctrines maintained on each slide. Mr. Dune makes frequent references to it in his Appendix -- 4 Elliot's Debates, 315 to 330.
b. 3 American Annal Register; Local History, 131.
15. Virginia, in the resolutions of her legislature on the tariff, in Feb. 1829, declared, "that there is no common arbiter to construe the constitution; being a federative compact between sovereign states, each state has a right to construe the compact for itself." 9 Dane's Abridg. ch. 187, art. 20, § 14, p. 589. See also North American Review, Oct. 1830, p. 488 to 528. The resolutions of Kentucky of 1798 contain a like declaration, that "to this compact [the constitution] each state acceded as a state, and is an integral party; that the government created by this compact was not made the exclusive, or final judge of the powers delegated to itself, etc.; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions, as of the mode and measure of redress." North American Review, Oct. 1830, p. 501. The Kentucky resolutions of 1799 go further, and assert, "that the several states, who formed that instrument, [the constitution] being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification by those sovereignties of all unauthorized acts done under colour of that instrument is the rightful remedy." North American Review, Id. 503; 4 Elliot's Debates, 315, 322. In Mr. Madison's Report in the Virginia legislature, in January, 1800, it is also affirmed, that the states are parties to the constitution; but by states he here means (as the context explains) the people of the states. That report insists, that the states are in the last resort the ultimate judges of the infractions of the constitution. p. 6, 7, 8, 9.
16. I do not mean to assert, that all those, who held these doctrines, have adopted the conclusions drawn from them. There are eminent exceptions; and among them the learned commentator on Blackstone's Commentaries seems properly numbered. See 1 Tucker's Black. App. 170, 171, § 8. See the Debates in the senate on Mr. Foot's Resolution in 1830, and Mr. Dane's Appendix, and his Abridgment and Digest, 9th Vol. ch. 187, art. 20, § 13 to 22, p. 588 et seq.; North American Review for Oct. 1830, on the Debates on the Public Lands, p. 481 to 486, 488 to 528; 4 Elliot's Debates, 315 to 330; Madison's Virginia Report, Jan. 1800, p. 6, 7, 8, 9; 4 Jefferson's Correspondence, 415; Vice President Calhoun's Letter to Gov. Hamilton, Aug. 28, 1832.
17. The Federalist, No. 22; Id. No. 43; see also Mr. Patterson's Opinion in the Convention, 4 Elliot's Debates, 74, 75; and Yates's Minutes.
18. The Federalist, No. 43. Mr. Madison, in the Virginia Report of January 1800, asserts, (p. 6, 7,) that "the states being parties to the constitutional compact, and in their sovereign capacity, it follows ofneces sity, that there can be no tribunal above their authority to decide in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide in the last resort such questions, as may be of sufficient magnitude to require their interposition." Id. p. 8, 9.
19. Cited in Johnson's Dictionary, verb Compact. See Heinecc. Elem. Juris. Natur. L. 2, ch. 6, § 109 to 112.
20. Pothier distinguishes between a contract and an agreement. An agreement, he says, is the consent of two or more persons to form some engagement, or to rescind, or modify an engagement already made. Duorum vel plurium in idem placitum consensus. Pand. Lib. 1, § 1. de Pactis. An agreement, by which two parties reciprocally promise and engage, or one of them singly promises and engages to the other, to give some particular thing, or to do or abstain from a particular act, is a contract; by which he means such an agreement, as gives a party the right legally to demand its performance. Pothier, Oblig. Part. 1, ch. 1, § 1, art. 1, § 1. See 1 Black. Comm. 44, 45.
21. Vattel, B. 2, ch. 12, § 152; 1 Black. Comm. 43.
22. 2 Black. Comm. 442.
23. Woodeson's Elements of Jurisprudence, 21, 22; 1 Wilson's Law Lect. 304, 305; Vattel, B. 1, ch. 1, § 1, 2; 2 Burlamaqui, Part 1, ch. 2, 3, 4; 1 Black. Comm. 47, 48, Heinecc. L. 2, ch. 1, § 12 to 18; (2 Turnbull, Heinecc. System of Universal Law, B. 2, ch. 1, § 9 to 12;) Id. ch. 6, § 109 to 115.
24. 2 Burlamaqui, Part 1, ch. 4, § 9; Heinecc. Elem. Juris. Natur. L. 2, ch. 6, § 107. Mr. Locke is one of the most eminent authors, who have treated on this subject. He founds all civil government upon consent. "When," says he, "any number of men have so consented to make a community of government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act, and conclude the rest."c And he considers this consent to be bound by the will of the majority, as the indispensable result of becoming a community; "else," says he, "this original compact, whereby he, with others, incorporates into one society, would signify nothing, and be no compact at all."d Doctor Paley has urged some very forcible objections against this doctrine, both as matter of theory and of fact, with which, however, it is unnecessary here to intermeddle. The discussion of them would more properly belong to lectures upon natural and political law.e Mr. Burke has, in one of his most splendid performances, made some profound reflections on this subject, the conclusion of which seems to be, that of society is to be deemed a contract, it is one of eternal obligation, and not liable to be dissolved at the will of those, who have entered into it. The passage is as follows: "Society is indeed a contract. Subordinate contracts for objects of more occasional interest may be deposited at pleasure. But the state ought not to be considered as nothing better than a partnership agreement in a trade of pepper and coffee, calico or tobacco, or some other such low concern, to be taken up for a little temporary interest, and to be dissolved by the fancy of the parties. It is to be looked on with other reverence; because it is not a partnership in things, subservient only to the
gross animal existence, of a temporary and perishable nature. It is a partnership in all science; a partnership in all art; a partnership in every virtue, and in all perfection. As the ends of such a partnership cannot
be obtained in many generations, it becomes a partnership not only between those, who are living, but between those, who are living, those, who are dead, and those, who are to be born. Each contract of each particular state is but a clause in the great primeval contract of eternal society, linking the lower with the higher natures, connecting the visible and invisible world, according, to a fixed compact, sanctioned by the inviolable oath, which holds all physical and all moral natures, each in their appointed place. This law is not subject to the will of those, who by an obligation above them, and infinitely superior are bound to submit their will to that law. The municipal corporations of that universal kingdom are not morally at liberty at their pleasure, and on their speculations of a contingent improvement, wholly to separate and tear asunder the bands of their subordinate community, and to dissolve it into an unsocial, uncivil, unconnected chaos of elementary principles. It is the first and supreme necessity only, a necessity, that is not chosen, but chooses, a necessity paramount to deliberation, that admits no discussion, and demands no evidence, which alone can justify a resort to anarchy. This necessity is no exception to the rule; because this necessity itself is a part too of that moral and physical disposition of things, to which man must he obedient by consent or force. But, if that, which is only submission to necessity, should be made the object of choice, the law is broken, nature is disobeyed, and the rebellious are outlawed, east forth, and exiled from this world of reason, and order, and peace, and virtue, and fruitful penitence, into the antagonist world of madness, discord, vice, confusion, and unavailing sorrow." Reflections on the Revolution in France.
c. Locke on Government, B. 2, ch 8, § 95.
d. Coke on Government, b. 2, § 96, 97, 99; Id. § 119, 120.
e. Paley on Moral and Political Philosophy, B. 6, ch. 3.
25. 1 Black. Comm. 47; see also 1 Hume's Essays, Essay 12. -- Mr. Hume considers, that the notion of government, being universally founded in original contract, is visionary, unless in the sense of its being founded upon the consent of those, who first associate together, and subject themselves to authority. He has discussed the subject at large in an elaborate Essay. Essay 12, p. 491.
26. Chisholm v. State of Georgia, 3 Dall. R. 419; 2 Cond. Rep. 635, 668; see also 1 Wilson's Law Lect. 305.
27. In the ordinance of congress of 1787, for the government of the territory of the United States northwest of river Ohio, in which the settlement of the territory, and the establishment of several states therein, was contemplated, it was declared, that certain articles therein enumerated "shall be considered as articles of compact between the original states and the people and states in the said territory, and for ever remain unalterable, unless by common consent." Here is an express enumeration of parties, some of whom were not then in existence, and the articles of compact attached as such only, when they were brought into life. And then to avoid all doubt, as to their obligatory force, they were to be unalterable, except by common consent. One party could not change or absolve itself from the obligation to obey them.
28. See Burke's Appeal from the New to the Old Whigs.
29. See 1 Hume's Essays, Essay 12.
30. 1 Tucker's Black. Comm. App. 168; Id. 172, 173; Burke's Appeal from the New to the Old Whigs.
31. Mr. Dane, in his Appendix to the ninth volume of his Abridgment, has examined this subject very much at large. See, especially, pages 37 to 43. Mr. Locke, the most strenuous asserter of liberty and of the original compact of society, contends resolutely for this power of the majority to bind the minority, as a necessary condition in the original formation of society. Locke on Government, B. 2, ch. 8, from § 95 to § 100.
32. It was the consideration of the consequences deducible from the theory of an original subsisting compact between the people, upon the first formation of civil societies and governments, that induced Doctor Paley to reject it. He supposed, that, if admitted, its fundamental principles were still disputable and uncertain; that, if founded on compact, the form of government, however absurd or inconvenient, was still obligatory; and that every violation of the compact involved a right of rebellion and a dissolution of the government.f Mr. Wilson (afterwards Mr. Justice Wilson) urged the same objection very forcibly in the Pennsylvanian Convention for adopting the constitution. 3 Elliot's Debates, 286, 287, 288. Mr. Hume considers the true reason for obedience to government to be, not a contract or promise to obey; but the fact, that society could not otherwise subsist.g
f. Paley's Moral Philosophy, B. 6, ch. 3. But see Burke's Reflections on the French Revolution, ante, p. 293, 294.
g. 1 Hune's Essays, Essay 12.
33. 9 Dane's Abridg. ch. 187, art. 20, § 13, p. 589.
34. Mr. Woodeson (Elements of Jurisp. p. 22,) says, "However the historical fact may be of a social compact, government ought to be, and is generally considered as founded on consent, tacit or express, or a real, or quasi compact. This theory is a material basis of political rights; and as a theoretical point, is not difficult to be maintained, etc. etc. Not that such consent is subsequently revokable at the will, even of all the subjects of the state, for that would be making a part of the community equal in power to the whole originally, and superior to the rulers thereof after their establishment." However questionable this latter position may be, (and it is open to many objections,h) it is certain, that a right of the minority to withdraw from the government, and to overthrow its powers, has no foundation in any just reasoning.
h. See 1 Wilson's 417, 418, 419, 420.
35. Dane's App. § 14, p. 25, 26.
36. Locke on Government, B. 2, ch. 8, § 95 to 100; ch. 19, § 212, 220, 226, 240, 243; 1 Wilson's Law Lectures, 310, 384, 417, 418. -- Mr. Dane (App. p. 32) says, that if there be any compact, it is a compact to make a constitution; and that done, the agreement is at an end. It then becomes an executed contract, and, according to the intent of the parties, a fundamental law.
37. Dane's App. § 16, 17, p. 29, 30; Id. § 14, p. 25, 26.
38. Heinecc. Elem. Juris. Natur. L. 2, ch. 6, § 109 to 115. (2 Turnbull, Hein. p. 95, etc.)
39. Mr. Justice Chase, in Ware v. Hylton, 3 Dall. R. 199 Condensed R. 99, declares the constitution of a state to be the fundamental law of the state. -- Mr. Dane has with, great force said, that a constitution is a thing constituted, an instrument ordained and established. If a committee frame a constitution for a state, and the people thereof meet in their several counties, and ratify it, it is a constitution ordained and established, and not a compact, or contract among the counties. So, if they meet in several towns and ratify it, it is not a compact among them. A compact among states is a confederation, and is always so named, (as was the old confederation,) and never a constitution 9 Dane's Abridgment, ch. 187, art. 20, § 15, p. 590.
40. Black. Comm. 38, 44, 45. See also Burlamaqui, Part 1, ch 8, p. 48, § 3, 4, 5.
41. 2 1 Black. Comm. 45.
42. The Federalist, No. 33. See also, No. 15.
43. The Federalist, No. 33.
44. Mr. Adams, in his Oration on the 4th of July, 1831, uses the following language: "In the constitution of this commonwealth [Massachusetts] it is declared, that the body politic is formed by a voluntary association of individuals. That it is a social compact, etc. The body politic of the United States was formed by a voluntary association of the people of the United Colonies. The Declaration of Independence was a social compact, by which the whole people covenanted with each citizen of the united colonies, and each citizen with the whole people, that the united colonies were, and of right ought to be, free and independent states. To this compact, union was as vital, as freedom and independence. From the hour of that independence, no one of the states, whose people were parties to it, could, without a violation of that primitive compact, secede, or separate from the rest. Each was pledged to all; and all were pledged to each other by a concert of soul, without limitation of time, in the presence of Almighty God, and proclaimed to all mankind. The colonies were not declared to be sovereign states. The term 'sovereign' is not even to be found in the Declaration." Again -- "Our Declaration of Independence, our confederation, our constitution of the United States, and all our state constitutions, without a single exception, have been voluntary compacts, deriving all their authority from the free consent of the parties to them." And he proceeds to state, that the modern doctrine of nullification of the laws of the Union by a single state, is a solecism of language, and imports selfcontradiction; and goes to the destruction of the government, and the Union. It is plain, from the whole reasoning of Mr. Adams, that when be speaks of the constitution as a compact, he means no more, than that it is a voluntary and solemn consent of the people to adopt it, as a form of government; and not a treaty obligation to be abrogated at will by a single state.
45. 1 Black. Comm. 211, 222.
46. Parliamentary Debates, 1688, edit. 1742, p. 203 et seq.
47. Id. p. 217, 218.
48. Parliamentary Debates, 1688, edit. 1742, p. 221, 223, 224.
49. Id. p. 225, 226.
50. Id. 246.
51. Id. 249.
52. Parliamentary Debates 1688, edit. 1742, p. 213.
53. Id. p. 213, 214.
54. Id. 220.
55. 1 Black. Comm. 212, 213.
56. 1 Black. Comm. 211.
57. 1 Black. Comm. 212, 213. -- The same doctrines were avowed by the great whig leaders of the house of commons on the trial of Doctor Sacheverill, in 1709. Mr. Burke, in his Appeal from the New to the Old Whigs, has given a summary of the reasoning, and supported it by copious extracts from the trial.
58. It is in this sense, that Mr. Chief Justice Jay is to be understood in his opinion in Chisholm v. Georgia, (2 Dall. R. 419; S. C. Peters's Cond. R. 635, 668,) when he says, "every state constitution is a compact, made by and between the citizens of the state to govern themselves in a certain manner; and the constitution of the United States is likewise a compact, made by the people of the United States to govern themselves, as to general objects, in a certain manner." The context abundantly shows, that he considered it a fundamental law of government; and that its powers did not rest on mere treaty; but were supreme, and were to be construed by the judicial department; and that the states were bound to obey.
59. Heinecc. Elem. Juris. Natur. L. 2, ch. 6,20§ 109 to 112; 2 Turnbull's Heinecc. p. 95, etc.;
60. The words "ordain and establish" are also found in the 3d article of the constitution. "The judicial power shall be vested in one supreme court, and in such inferior courts, as the congress may from time to time ordain and establish." How is this to be done by congress? Plainly by a law; and when ordained and established, is such a law a contract or compact between the legislature and the people, or the Court, or the different departments of the government? No. It is neither more nor less than a law, made by competent authority, upon an assent or agreement of minds. In Martin v. Hunter, (1 Wheat. R. 304, 324) the Supreme Court said, "The constitution of the United States was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, "by the people of the United States." To the same effect is the reasoning Of Mr. Chief Justice Marshall, in delivering the opinion of the court in M'Culloch v. Maryland, (4 Wheaton, 316, 402 to 405, already cited.)
61. The Federalist, No. 9, 15, 17, 18, 33; Webster's Speeches, 1830; Dane's App. § 2, p. 11, § 14, p. 25, etc.; Id. § 10, p. 21; Mr. Martin's Letter, 3 Elliot, 53; 1 Tucker's Black. Comm. App. 146.
62. 1 Wilson's Lectures, 417.
63. See The Federalist, No. 9; Id. No. 15, 16; Id. No. 33; Id. No. 39.
64. New-England Confederacy of 1643; 3 Kent. Comm. 190, 191, 192; Rawle on Const. Introduct. p. 24, 25. -- In the ordinance of 1787, for the government of the territory northwest of the Ohio, certain articles were expressly declared to be "articles of compact between the original states, [i. e. the United States,] and the people and states [states in futuro, for none were then in being] in the said territory." But to guard against any possible difficulty, it was declared, that these articles should "forever remain unalterable, unless by common consent," So, that though a compact, neither party was at liberty to withdraw from it at its pleasure, or to absolve itself from its obligations. Why was not the constitution of the United States declared to be articles of compact, if that was the intention of the framers?
65. The Federalist, No. 15, 22, 39, 40, 43; Ogden v. Gibbons, 9 Wheaton's R. 1, 187.
66. The Federalist, No. 22; Id. No. 43.
67. The very first resolution adopted by the convention (six states to two states) was in the following words: "Resolved, that it is the opinion of this committee, that a national government ought to be established of a supreme legislative, judiciary, and executive;"i plainly showing, that it was a national government, not a compact, which they were about to establish; a supreme legislative, judiciary, and executive, and not a mere treaty for the exercise of dependent powers during the good pleasure of all the contracting parties.
i. Journal of Congress, p. 83, 134, 139, 207; 4 Elliot's Debates, 49 See also 2 Pitkin's History, 232.
68. Journal of Convention, p. 367, 368.
69. The language of the Supreme Court in Gibbons v. Ogden, (9 Wheat. R. 1, 187,) is very expressive on this subject.
| "As preliminary to the very able discussions of the constitution, which we have heard from the bar, and as having some influence on its construction, reference has been made to the political situation of these states, anterior to its formation. It has been said, that they were sovereign, were completely independent, and were connected with each other only by a league. This is true. But, when these allied sovereigns converted their league into a government, when they converted their Congress of Ambassadors, deputed to deliberate on their common concerns, and to recommend measures of general utility, into a legislature, empowered to enact laws on the most interesting subjects, the whole character, in which the states appear, underwent a change, the extent of which must be determined by a fair consideration of the instrument, by which that change was effected." |
71. See the forms in the Journals of the Convention, etc. (1819), p. 390 to 465.
72. Journals of the Convention, etc. (1819), p. 401, 402, 412.
73. Id. p. 416. -- Of the right of a majority of the whole people to change their constitution, at will, there is no doubt. See 1 Wilson's Lectures, 418; 1 Tucker's Black. Comm. 165.
74. Articles of Confederation, 1781, art. 13.
75. I do not say, that the manner of stating the objection was just, but the fact abundantly appears in the printed debates. For instance, in the Virginia debates, (2 Elliot's Deb. 47,) Mr. Henry said, "That this is a consolidated government is demonstrably clear." "The language [is] 'We, the people,' instead of, 'We, the states.' States are the characteristics and soul of a confederation. If the states be not the agents of this compact, it must be one great consolidated national government of the people of all the states." The like suggestion will be found in various places in Mr. Elliot's Debaters in other states. See 1 Elliot's Debates, 91, 92, 110. See also, 3 Amer. Museum, 422; 2 Amer. Museum, 540, 546; Mr. Martin's Letter, 4 Elliot's Debates, p. 53.
76. 3 Elliot's Debates, 145, 257, 201; The Federalist, No. 32, 33, 39, 44, 45; 3 Amer. Museum, 422, 424.
77. Mr. Iredell, 3 Elliot's Debates, 24, 25; Id. 200, Mr. McClure, Id. 25; Mr. Spencer, Id. 26, 27; Id. 139. See also 3 Elliot's Debates, 156; See also Chisholm v. Georgia, 3 Dall, 419; 2 Condensed Rep. 635, 667, 668. See also in Penn. Debates, Mr. Wilson's denial, that the constitution was a compact; 3 Elliot's Debates, 286, 287. See also McCulloch v. Maryland, 4 Wheaton, 316, 404.
78. The Federalist, No. 15 to 20, 38, 39, 44; North Amer. Review, Oct. 1827, p. 265, 266.
79. Rawle on the Constitution, ch. 32, p. 295, 296, 297, 302, 305.
80. Dane's App. § 59, 60, p. 69, 71.
81. Mr. (afterwards Mr. Justice) Wilson, who was a member of the Federal Convention, uses, in the Pennsylvania Debates, the following language: "We were told, etc. that the convention no doubt thought they were forming a compact or contract of the greatest importance. It was matter of surprise to see the great lending principles of this system still so very much misunderstood. I cannot answer for what every member thought; but I believe it cannot be said, they thought they were making a contract, because I cannot discover the least trace of a compact in that system. There can be no compact, unless there are more parties than one. It is a new doctrine, that one can make a compact with himself. 'The convention were forming contracts! with whom? I know no bargains, that were there made, I am unable to conceive, who the patties could be. The state governments make a bargain with each other. That is the doctrine, that is endeavoured to be established by gentlemen in the opposition; their state sovereignties wish to be represented. But far other were the ideas of the convention. This is not a government founded upon compact. It is founded upon the power of the people. They express in their name and their authority, we, the people, do ordain and establish," etc. 3 Elliot's Debates, 286, 287. He adds (Id. 288) "This system is not a compact or contract. The system tells you, what it is; it is an ordinance and establishment of the people." 9 Dane's Abridg. ch. 187, art. 20, § 15, p. 589, 590; Dane's App. § 10, p. 21, § 50, p. 69.
82. See Ware v. Hylton, 3 Dall. 199; I Cond. Rep. 99,1 12; Chrisholm v. Georgia, 3 Dall. 419; 2 Cond. R. 668, 671; Elliot's Debates, 72; 2 Elliot's Debates, 47; Webster's Speeches, p. 410; The Federalist, No. 22, 33, 39; 2 Amer. Museum, 536, 516; Virginia Debates in 1798, on the Alien Laws, p. 111, 136, 138, 140; North Amer. Rev. Oct. 1830, p. 437, 444.
83. No. 39.
84. 1 Tuck. Black. Comm. 169; Haynes's Speech in the Senate, in 1830; 4 Elliot's Debates, 315, 316.
85. Resolutions of 1800, p. 5, 6.
86. North American Review Oct. 1830, p. 537, 544.
87. 4 Wheaton, 404.
88. The Federalist, No 39. -- In confirmation of this view, we may quote the reasoning of the Supreme Court in the case of McCulloch v. Maryland, (4 Wheaton's R 316,) in answer to the very argument.
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"The powers of the general government, it has been said, are delegated by the states, who alone are truly sovereign; and must be exercised in subordination to the states, who alone possess supreme dominion.
"It would be difficult to sustain this proposition. The convention, which framed the constitution, was indeed elected by the state legislatures. But the instrument, when it came from their hands, was a mere proposal, without obligation, or pretensions to it. It was reported to the then existing congress of the United States, with a request, that it might be submitted to a convention of delegates, chosen in each state by the people thereof, under the recommendation of its legislature, for their assent and ratification.' This mode of proceeding was adopted; and by the convention, by congress, and by the state legislatures, the instrument was submitted to the people. They acted upon it in the only manner, in which they can act safely, effectively, and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several states -- and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines, which separate the states, and of compounding the American people into one common mass. Of consequence, when they act, they act in their states. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the state governments. "From these conventions the constitution derives its whole authority. The government proceeds directly from the people; is ' ordained and established ' in the name of the people; and is declared to be ordained, ' in order to form a more perfect union, establish justice, ensure domestic tranquility, and secure the blessings of liberty to themselves and to their posterity.' The assent of the states, in their sovereign capacity, is implied in calling a convention, and thus submitting that instrument to the people. But the people were at perfect liberty to accept or reject it; and their act was final. It required not the affirmance, and could not be negatived, by the state governments. The constitution, when thus adopted, was of complete obligation, and bound the state sovereignties. "It has been said, that the people had already surrendered all their powers to the state sovereignties, and had nothing more to give. But, surely, the question, whether they may resume and modify the power granted to government, does not remain to be settled in this country. Much more might the legitimacy of the general government be doubted, had it been created by the states. The powers delegated to the state sovereignties were to be exercised by themselves, not by a distinct and independent sovereignty, created by themselves. To the formation of a league, such as was the confederation, the state sovereignties were certainly competent. But when, ' in order to form a more perfect union,' it was deemed necessary to change this alliance into an effective government, possessing great and sovereign powers, and acting directly on the people, the necessity of referring it to the people, ant of deriving its power directly from them, was felt and acknowledged by all. "The government of the Union, then, (whatever may be the influence of this fact on the case,) is, emphatically, and truly, a government of the people. In form and in substance it emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit. "This government is acknowledged by all to be one of enumerated powers. The principle, that it can exercise only the powers granted to it, would seem too apparent to have required to be enforced by all those arguments, which its enlightened friends, while it was depending before the people, found it necessary to urge. That principle is now universally admitted. But the question respecting the extent of the powers actually granted, is perpetually arising, and will probably continue to arise, as long as our system shall exist." |
90. Mr. Dane reasons to the same effect, though it is obvious, that he could not, at the time, have had any knowledge of the views of Mr. Webster.j He adds, "If a contract, when and how did the Union become a party to it? If a compact, why is it never so denominated, but often and invariably in the instrument itself, and in its amendments, styled, "This constitution? and if a contract, why did the framers and people call it the supreme law."k In Martin v. Hunter, (1 Wheat. R. 304, 324,) the supreme court expressly declared, that "the constitution was ordained and established," not by the states in their sovereign capacity, but emphatically, as the preamble of the constitution declares, "by the people of the United States."
j. 9 Dane's Abridg. ch. 189, art. 20, § 15, p. 589,590; Dane's App. 40,41, 42.
k. 9 Dane's Abridg. 590.
91. Webster's Speeches, 429; 4 Elliot's Debates, 324.
92. Even under the confederation, which was confessedly, in many respects, a mere league or treaty, though in other respects national, congress unanimously resolved, that it was not within the competency of any state to pass acts for interpreting, explaining, or construing a national treaty, or any part or clause of it. Yet in that instrument there was no express judicial powers given to the general government to construe it. It was, however, deemed an irresistible and exclusive authority in the general government, from the very nature of the other powers given to them; and especially from the power to make war and peace, and to form treaties. Journals of Congress, April 13, 1787, p. 32, etc.; Rawle on Const. App. 2, P. 316, 320.
93. In the resolutions passed by the senate of South-Carolina in December, 1827, it was declared, that "the constitution of the United States is a compact between the people of the different states with each other, as separate and independent sovereignties." Mr. Grimke filed a protest founded on different views of it. See Grimke's Address and Resolutions in 1828, (edition, 1829, at Charleston,) where his exposition of the constitution is given at large, and maintained in a very able speech.
94. The Federalist, No. 39; see Sturgis v. Crowninshield, 4 Wheat. R. 122, 193.
95. Mr. Madison's Letter in North American Review, October, 1830, p. 537, 538.
96. See Dane's App. § 32, 33, p. 41, 42, 43.
97. Chisholm v. Georgia, 2 Dall. 419; 2 Cond. Rep. 668, 671; Martin v. Hunter, 1 Wheat. R. 304, 324; Dane's App. p. 22, 24, 29, 30, 37, 39, 40, 41, 42, 43, 51. This subject is considered with much care by President Monroe in his Exposition, accompanying his Message, of the 4th of May, 1822. It is due to his memory to insert the following passages which exhibits his notion of the supremacy of the Union.
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"The constitution of the United States being ratified by the people of the several states, became, of necessity, to the extent of its powers, the paramount authority of the Union. On sound principles, it can be viewed in no other light. The people, the highest authority known to our system, from whom all our institutions spring, and on whom they depend, formed it. Had the people of the several states thought proper to incorporate themselves into one community under one government, they might have done it. They had the power, and there was nothing then, nor is there any thing now, should they be so disposed, to prevent it. They wisely stopped, however, at a certain point, extending the incorporation to that point, making the national government, thus far, A consolidated government, and preserving the state government, without that limit, perfectly sovereign and independent of the national government. Had the people of the several states incorporated themselves into one community, they must have remained such; their constitution becoming then, like the constitutions of the several states, incapable of change, until altered by the will of the majority. In the institution of a state government by the citizens of a state, a compact is formed, to which all and every citizen are equal parties. They are also the sole parties; and may amend it at pleasure. In the institution of the government of the United States, by the citizens of every state, a compact was formed between the whole American people, which has the same force, and partakes of all the qualities, to the extent; of its powers, as a compact between the citizens of a state, in the formation of their own constitution. It cannot be altered, except by those who formed it, or in the mode prescribed by the parties to the compact itself.
"This constitution was adopted for the purpose of remedying all the defects of the confederation; and in this, it has succeeded, beyond any calculation, that could have been formed of any human institution. By binding the states together, the constitution performs the great office of the confederation, but it is in that sense only, that it has any of the properties of that compact, and in that it is more effectual, to the purpose, as it holds them together by a much stronger bond, and in all other respects, in which the confederation failed, the constitution has been blessed with complete success. The confederation was a compact between separate and independent states; the execution of whose articles, in the powers which operated internally, depended on the state governments. But the great office of the constitution, by incorporating the people of the several states, to the extent of its powers, into one community, and enabling it to act directly on the people, was to annul the powers of the state government to that extent, except in cases where they were concurrent, and to preclude their agency in giving effect to those of the general government. The government of the United States relies on its own means for the execution of its powers, as the state government do for the execution of theirs; both governments having, a common origin, or sovereign, the people; the state governments, the people of each state, the national government, the people of every state; and being amenable to the power, which created it. It is by executing its functions as a government, thus originating and thus acting, that the constitution of the United States holds the states together, and performs the office of a league. It is owing to the nature of its powers, and the high source, from whence they are derived, the people, that it performs that office better than the confederation, or any league, whichever existed, being a compact, which the state governments did not form, to which they are not parties, and which executes its own powers independently of them." |
l. Yates's debates, 4 Elliot's Debates, 75.
The ordinance of 1787, for the government of the western territory, contains (as we have seen) certain articles declared to be "articles of compact;" but they are also declared to "remain for ever unalterable, except by common consent." So, that there may be a compact and yet by the stipulations neither party may be at liberty to withdraw from it, or absolve itself from its obligations. Ante, p. 209.
99. 1 Tucker's Black. Comm. 169, 170.
100. 1 Tucker's Black. Comm. 170.
101. Debates in the Senate, in 1830, on Mr. Foot's Resolution, 4 Elliot's Debates, 315 to 331.
102. Webster's Speeches, 429; 4 Elliot's Debates, 324.
103. Dane's App. § 32, p. 41; Id. § 38, p. 46.
104. The following strong language is extracted from Instruction given to some Representatives of the state of Virginia by their constituents in 1787, with reference to the confederation: "Government without coercion is a proposition at once so absurd and self contradictory, that the idea creates a confusion of the understanding. It is form without substance; at best a body without a soul. If men would act right, government of all kinds would be useless. If states or nations, who are but assemblages of men, would do right, there would be no wars or disorders in the universe.
Bad as individuals are, states are worse. Clothe men with public authority, and almost universally they consider themselves, as liberated from the obligations of moral rectitude, because they are no longer amenable to justice." 1 Amer. Mus. 290.
105. Madison's Virginia Report, January, 1800, p. 6, 7, 8, 9; Webster's Speeches, 407 to 409, 410, 411, 419 to 421.
106. The legislature of Virginia, in 1829, resolved, that there is no common arbiter to construe the constitution of the United States; the constitution being a federative compact between sovereign states, each state has a right to construe the compact for itself" Georgia and South-Carolina have recently maintained the same doctrine; and it has been asserted in the senate of the United States, with an uncommon display of eloquence and pertinacity.m It is not a little remarkable, that in 1810, the legislature of Virginia thought very differently, and then deemed the supreme court a fit and impartial tribunal.n Pennsylvania at the same time, though she did not deny the court to be, under the constitution, the appropriate tribunal, was desirous of substituting some other arbiter.o The recent resolutions of her own legislature (in March, 1831) show, that she now approves of the supreme court, as the true and common arbiter. One of the expositions of the doctrine is, that if a single state denies a power to exist under the constitution, that power is to be deemed defunct, unless three-fourths of the states shall afterwards reinstate that power by an amendment to the constitution.p What, then, is to be done, where ten states resolve, that a power exists, and one, that it does not exist? See Mr. Vice-President Calhoun's Letter of 28th August, 1832, to Gov. Hamilton.
m. Dane's Abridg. ch. 197, art. § 20, to 13, p. 589, etc. 591; Dane's Apr. 52 to 59, 67 to 72; 3 American Annual Register, Local Hist. 131.
n. North American Review October, 1830. p. 509, 512; 6 Wheat. R. 358.
o. North American Review, Id. 507, 508.
p. Elliot's Debates, 320, 321.
107. Massachusetts openly opposed it in the resolutions of her legislature of the 12th of February, 1799, and declared, "that the decision of all cases in law and equity arising under the constitution of the United States, and the construction of all laws made in pursuance thereof, are exclusively vested by the people, in the judicial courts of the United States."q Six other states, at that time, seem to have come to the same result.r And on other occasions, a Larger number have concurred on the same point.s Similar resolutions have been passed by the legislatures of Delaware and Connecticut in 1834, and by some other states. How is it possible, for a moment, to reconcile the notion, that each state is the supreme judge for itself of the construction of the constitution, with the very first resolution of the convention, which formed the constitution: "Resolved, etc.; that a national government ought to be established; consisting of a supreme, legislative, judiciary, and executive?"t
q. Dane's App. 58.
r. North American Review, October, 1830, p. 500.
s. Dane's App. 67; Id. 52 to 59.
t. Journals of Convention, 83; 4 Elliot's Deb. 49.