and capacity. The body politic was competent to bind itself, so far as the constitution of the State permitted. But not having power to bind the people in cases beyond their constitutional authority, the assent of the people was indispensably necessary to the validity of the compact, by which the rights of the people might be diminished, or submitted to a new jurisdiction, or in any manner affected. From hence, not only the body politic of the several States, but all citizens thereof, may be considered as parties to the compact, and to have bound themselves reciprocally to each other for the due observance of it, and also to have bound themselves to the federal government, whose authority has been thereby created and established.2 § 318. Lastly, it is a compact by which the federal government is bound to the several States and to every citizen of the United States. Although the federal government can in no possible view be considered as a party to a compact made anterior to its existence, and by which it was in fact created, yet, as the creature of that compact, it must be bound by it to its creators, the several States in the Union and the citizens thereof. Having no existence but under the Constitution, nor any rights but such as that instrument confers, and those very rights being in fact duties, it can possess no legitimate power but such as is absolutely necessary for the performance of a duty prescribed and enjoined by the Constitution. Its duties then become the exact measure of its powers; and whenever it exerts a power for any other purpose than the performance of a duty prescribed by the Constitution, it transgresses its proper limits and violates the public trust. Its duties being moreover imposed for the general benefit and security of the several States in their political character, and of the people both in their sovereign and individual capacity, if these objects be not obtained, the government does not answer the end of its creation. It is, therefore, bound to the several States respectively, and to every citizen thereof, for the due execution of those duties; and the observance of this obligation is enforced under the solemn sanction of an oath from those who administer the government. § 319. Such is a summary of the reasoning of the learned author, by which he has undertaken to vindicate his views of the 1 1 Tucker's Black. Comm. App. note D, p. 169. 2 1 Tucker's Black. Comm. note D, p. 170. 8 Ibid. nature of the Constitution. (a) That reasoning has been quoted at large, and for the most part in his own words, not merely as his own, but as representing, in a general sense, the opinions of a large body of statesmen and jurists in different parts of the Union, avowed and acted upon in former times, and recently revived under circumstances which have given them increased importance if not a perilous influence.1 (b) 1 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, (a) When, in 1861, the people of that section of the country in which the doctrines of Mr. Tucker had taken most root, attempted to withdraw from the Union and establish a government of Confederate States, they endeavored by their constitution to preclude forever such a construction of the instrument as had prevailed regarding the Constitution of the United States. The preambles of the two instruments placed side by side will show very distinctly the difference in the ends sought. Preamble to the Constitution of the United States. "We, the people of the United States, in order to form a more perfect Union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America." main was copied from that of the United States, but its framers were particular to state that the powers vested in the Congress were delegated, not granted to that body. How far the purpose of these variations from the Constitution of the Union was accomplished may appear from the statement, doubtless somewhat exaggerated, of a prominent actor, who declares that "in less than a twelvemonth after this same boasted States-rights Constitution was put in operation, its very framers notoriously, and in spite of all remonstrance, succeeded in consolidating all governmental power in the central agency at Richmond, and, upon the stale plea of military necessity, shamelessly trod under foot all the reserved rights of the States and the people, and organized an irresponsible military despotism in the very bosom of the Ancient Dominion, as harsh and grinding in its character as has ever heretofore existed in any age of the world." The War of the Rebellion, by II. S. Foote, p. 49. The measures of which Mr. Foote complained were disapproved of by the Vice-President of the Confederacy, and were the subject of protests in some of the States, especially in Georgia; but in a life-and-death struggle no government is likely to inquire very carefully into paper limitations upon its powers. C. (b) See also Life of Webster, by Cur The Confederate Constitution in the tis, II. ch. 16 and 19. § 320. It is wholly beside our present purpose to engage in a critical commentary upon the different parts of this exposition. It will be sufficient, for all the practical objects we have in view, to suggest the difficulties of maintaining its leading positions, to expound the objections whch have been urged against them, and to bring into notice those opinions, which rest on a very different basis of principles. § 321. The obvious deductions which may be, and indeed have been, drawn from considering the Constitution as a compact be- N tween the States, are, that it operates as a mere treaty or convention between them, and has an obligatory force upon each State no longer than suits its pleasure, or its consent continues; that each State has a right to judge for itself in relation to the nature, extent, and obligations of the instrument, without being at all bound by the interpretation of the federal government, or by that of any other State; and that each retains the power to 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, October, 1830, pp. 501, 545. In the resolutions of the senate of South Carolina, in November, 1817, 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." In November, 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, reasserts the right of the Statos, as parties, to decide upon the unconstitutionality of any measure. Report, pp. 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." 3 Am. An. Reg.: Local History, 131. Mr. Vice-President Calhoun's letter to Gov. Hamilton of August 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 side. Mr. Dane makes frequent references to it in his Appendix. 4 Elliot's Debates, 315 to 330. withdraw from the confederacy and to dissolve the connection, when such shall be its choice; and may suspend the operations of the federal government, and nullify its acts within its own territorial limits, whenever, in its own opinion, the exigency of the case may require.1 These conclusions may not always be avowed; but they flow naturally from the doctrines which we have under consideration.2 (a) They go to the extent of reducing the government to a mere confederacy during pleasure; and of thus presenting the extraordinary spectacle of a nation existing only at the will of each of its constituent parts. 1 Virginia, in the resolutions of her legislature on the tariff, in February, 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, October, 1830, pp. 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, &c.; 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 measures of redress." North American Review, October, 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 color 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. The report insists that the States are in the last resort the ultimate judges of the infractions of the Constitution. pp. 6, 7, 8, 9. 2 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, Vol. IX. ch. 187, art. 20, §§ 13 to 22, p. 588, et seq.; North American Review for October, 1830, on the Debates on the Public Lands, pp. 481 to 486, 488 to 528; 4 Elliot's Dobutes, 315 to 330; Madison's Virginia Report, Jan. 1800, pp. 6, 7, 8, 9; 4 Jefferson's Correspondence, 415; Vice-President Calhoun's letter to Gov. Hamilton, August 28, 1832. (a) See Mr. Madison's explanation of the Virginia Resolutions, Writings of Madison, IV. 95; North American Review, October, 1830; Randall's Jefferson, II. 451. See also Mr. Madison's elaborate paper on Nullification, in his Writings, IV. 394. Compare as to the right of the States to judge as to infractions of the Constitution, Report of the Hartford Convention of 1814, in Dwight's History thereof, p. 361; Nile's Register, Vol. VII. p. 308. § 322. If this be the true interpretation of the instrument, it has wholly failed to express the intentions of its framers, and brings back, or at least may bring back, upon us all the evils of the old confederation, from which we were supposed to have had a safe deliverance. For the power to operate upon individuals, instead of operating merely on States, is of little consequence, though yielded by the Constitution, if that power is to depend for its exercise upon the continual consent of all the members upon every emergency. We have already seen that the framers of the instrument contemplated no such dependence. Even under the confederation it was deemed a gross heresy to maintain that a party to a compact has a right to revoke that compact; and the possibility of a question of this nature was deemed to prove the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority.1 "A compact between independent sovereigns, founded on acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach committed by either of the partics absolves the others, and authorizes them, if they please, to pronounce the compact violated and void." 2 (a) Consequences like these, which place the dissolution of the government in the hands of a single State, and enable it at will to 1 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. 2 The Federalist, No. 43. Mr. Madison in the Virginia Report of January, 1800, asserts (pp. 6, 7) that "the States being parties to the constitutional compact, and in their sovereign capacity, it follows of necessity 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 acquire their interposition." Id. pp. 8, 9. (a) In the Report of the Hartford Convention of 1814, it was declared that "in cases of deliberate, dangerous, and palpable infractions of the Constitution affecting the sovereignty of a State and liberties of the people, it is not only the right but the duty of such a State to interpose its authority for their protection, in the manner best calculated to secure that end. When emergencies occur which are either beyond the reach of the judicial tribunals, or too pressing to admit of the delay incident to their forms, States which have no common umpire must be their own judges and execute their own decisions." Dwight, Hist. Hartford Convention, 361; Niles's Register, Vol. VII. p. 308. |