of the Federal Government, that to give it efficacy, and to obviate questions and doubts concerning its precise nature and limits, may require a corresponding adjustment in other parts of the Federal system. That these are important defects in the system of the Federal Government is acknowledged by the acts of those States, which have concurred in the present meeting. That the defects, upon closer examination, may be found greater and more numerous than even these acts imply, is at least, so far probable, from the embarrassments which characterize the present state of our national affairs, foreign and domestic, as may reasonably be supposed to merit a deliberate and candid discussion, in some mode which will unite the sentiments and counsels of all the States.”
The reader will observe that the Government of the States, under the Articles of Confederation, is called a “Federal Government,” and that the object proposed to be accomplished by the meeting of the new Convention at Philadelphia, was to amend the Constitution of that Government. Northern writers have sought to draw a distinction between the Government formed under the Articles of Confederation, and that formed by the Constitution of the United States, calling the one a league, and the other a government. Here we see Alexander Hamilton calling the Confederation a government—a Federal Government. It was, indeed, both a league and a government, as it was formed by sovereign States; just as the Government of the United States is both a league and a government, for the same reason.
The fact that the laws of the Confederation, passed in pursuance of its League, or Constitution, were to operate upon the States; and the laws of the United States were to operate upon the individual citizens of the States, without the intervention of State authority, could make no difference. This did not make the latter more a government than the former. The difference was a mere matter of detail, a mere matter of machinery—nothing more. It did not imply more or less absolute sovereignty in the one case, than in the other. Whatever of sovereignty had been granted, had been granted by the States, in both instances.
The new Convention met in Philadelphia, on the 14th of May, 1787, with instructions to devise and discuss “all such alterations, and further provisions as may be necessary to render the Federal Constitution adequate to the exigencies of the Union.” We see, thus, that the very Convention which framed the Constitution of the United States, equally called the Articles of Confederation a Constitution. It was, then, from a Constitutional, Federal Government, that the States seceded when they adopted the present Constitution of the United States! A Convention of the States assembled with powers only to amend the Constitution; instead of doing which, it abolished the old form of government altogether, and recommended a new one, and no one complained. As each State formally and deliberately adopted the new government, it as formally and deliberately seceded from the old one; and yet no one heard any talk of a breach of faith, and still less of treason.
The new government was to go into operation when nine States should adopt it. But there were thirteen States, and if nine States only acceded to the new government, the old one would be broken up, as to the other four States, whether these would or not, and they would be left to provide for themselves. It was by no means the voluntary breaking up of a compact, by all the parties to it. It was broken up piece-meal, each State acting for itself, without asking the consent of the others; precisely as the Southern States acted, with a view to the formation of a new Southern Confederacy.
So far from the movement being unanimous, it was a long time before all the States came into the new government. Rhode Island, one of the Northern States, which hounded on the war against the Southern States, retained her separate sovereignty for two years before she joined the new government, not uttering one word of complaint, during all that time, that the old government, of which she had been a member, had been unduly broken up, and that she had been left to shift for herself. Why was this disruption of the old government regarded as a matter of course? Simply because it was a league, or treaty, between sovereign States, from which any one of the States had the right to withdraw at any time, without consulting the interest or advantage of the others.
But, say the Northern States, the Constitution of the United States is a very different thing from the Articles of Confederation. It was formed, not by the States, but by the people of the United States in the aggregate, and made all the States one people, one government. It is not a compact, or league between the States, but an instrument under which they have surrendered irrevocably their sovereignty. Under it, the Federal Government has become the paramount authority, and the States are subordinate to it. We will examine this doctrine, briefly, in another chapter.
CHAPTER II.
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
