Page images

tion, as constituent parts of the British Empire, or as dependencies upon it, that relation was completely dissolved and annihilated from that period. From the moment of the Revolution they became severally independent and sovereign States, possessing all the rights, jurisdictions, and authority that other sovereign states, however constituted, or by whatever title denominated, possess ; and bound by no ties but of their own creation, except such as all other civilized nations are equally bound by, and which together constitute the customary law of nations.1

$ 315. It is a written compact. Considered as a federal compact or alliance between the States, there is nothing new or singular in this circumstance, as all national compacts since the invention of letters have probably been reduced to that form. But considered in the light of an original social compact, the American Revolution seems to have given birth to this new political phenom

. In every State a written Constitution was framed and adopted by the people both in their individual and sovereign capacity and character.2


i i Tuck. Black. Comm. App. note D, p. 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, &c.

“In order correctly to ascertain this rank, this 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 acts of this people, first created 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 4, 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 the people thereof in that sovereign capacity. The 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.”

2 1 Tucker's Black. Comm. App. note D, p. 153. There is an inaccuracy here; Connecticut did not form a constitution until 1818, and existed until that period under her colonial charter. Rhode Island framed and adopted a constitution in 1842. (But until such adoption the colonial charter must be considered as having been accepted for and as constituting a State constitution. This was the view taken by the Superior Court of Rhode Island in 1786, when in the case of Trevett v. Weedon, a legislative act was declared unconstitutional because in conflict with the royal charter. See also Luther v. Borden, 7 How. 1.]

§ 316. It is a compact freely, voluntarily, and solemnly entered into by the several States, and ratified by the people thereof respectively; - freely, there being neither external nor internal force or violence to influence or promote the measure, the United States being at peace with all the world and in perfect tranquillity in each State ; voluntarily, because the measure had its commencement in spontaneous acts of the State legislatures, prompted by a sense of the necessity of some change in the existing confederation ; and solemnly, as having been discussed, not only in the general convention which proposed and framed it, but afterwards in the legislatures of the several States, and finally in the conventions of all the States, by whom it was adopted and ratified. 1

§ 317. It is a compact by which the several States and the people thereof respectively have bound themselves to each other and to the Federal government. The Constitution had its commencement with the body politic of the several States ; and its final adoption and ratification was by the several legislatures referred to and completed by conventions especially called and appointed for that purpose in each State. The acceptance of the Constitution was not only an act of the body politic of each State, but of the people thereof respectively in their sovereign character 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.3

[ocr errors]

11 Tucker's Black. Comm. App. note D, p. 155, 156.
2 1 Tucker's Black. Comm. App. note D, p 169.
8 i Tucker's Black. Comm. note D, p. 170.

§ 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 nature of the Constitution. That reasoning has been quoted at 11 Tucker's Black. Comm. note D, p. 170.

[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."

Preamble to the Constitution of the Confederate States. “We, the people of the Confederate States, and each State acting in its sovereign and independent character, in order to form a permanent Federal government, establish justice, and secure the blessings of liberty to ourselves and our posterity, invoking the favor and guidance of Almighty God, do ordain and establish this Constitution for the Confederate States of America."

The Confederate Constitution in the main was copied from that of the United States,


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

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 remonstrances, 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 H. 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.)

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, 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, p. 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 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. 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

§ 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 which 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 between 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 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.

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. [See also Life of Webster, by Curtis, II. ch. 16 and 19.]

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, 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, &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. p. 6, 7, 8, 9,

« PreviousContinue »