LITMIR.BIZ

      CHAPTER II.

       Table of Contents

      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 fulfil 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.”

      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 where 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 a 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 do, 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 thus put it beyond cavil in the future. Massachusetts expressed herself as follows, 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 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

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