violence; yet this last is only to be done where the legislature, or executive of the state (where the legislature cannot be convened) shall make the application. Nor does any thing in the constitution prohibit any state from keeping troops, or ships of war, except in time of peace; nor from engaging in war, if it be either actually invaded, or in such imminent danger as not to admit of delay. Yet where no such invasion, or imminent danger exists, the engaging in war, whether offensive or defensive; and after the peace, as the result and issue of war, are among those things, which cannot be undertaken, or adjusted, but by the common consent of the confederacy. To which we may add, with Puffendorf, taxes and subsidies as they contribute, and are necessary, to the mutual support; and alliances with foreign states, as they may promote the common safety. It falls under the same head of duties, that in case any dispute arise among the confederates themselves, the other members who are unconcerned shall immediately interpose their mediation, and not suffer the controversy to come to blows. Or the confederates may establish some common tribunal by which their differences may be decided, such as the Amphictyonic council among the Grecian states; or as the supreme court of the United States, which hath original jurisdiction by the federal constitution, in all cases of controversy between two or more states. As for those other matters, which seem not so necessary to be transacted in common, (among which Puffendorf reckons negotiations of traffic, such as taxes, for the particular use of any single state, the constituting of magistrates, the enacting laws, the power of life and death over their respective citizens, or subjects, the ecclesiastical authority, where such an authority is permitted, and the like; there is no reason, but that they may be left to the pleasure of each distinct government: though at the same time particular states ought to manage their privileges as that they shall cause no disturbance in the general union. … Whence it is evident, that one or more of the allies cannot be hindered by the rest, from exercising, according to their own judgment, such parts of the civil administration, as are not in the compact of union, referred to the common direction.28 And this, with the exception of commercial treaties (which, for very cogent reason, were by the common consent surrendered by the respective states, to the general confederacy,) may be considered as sketching the general outline of the American union.
Since, in these systems, it is necessary that there should be a communication of certain affairs expressed in the compact of union; and since this cannot be conveniently done by letters; and since, even where this could be done, delays might be attended with great prejudice, or inconvenience to the confederacy, a determinate time and place ought to be settled for the holding assemblies and one or more persons appointed, who shall have power to call the states together, in case of any extraordinary business, which will admit of no delay. Though it seems a much more compendious method to fix a standing council, made up of persons deputed by the several confederates, who shall dispatch business according to the tenor of their commission; and, to whom the ministers of the confederacy in foreign parts, shall give an immediate account of their proceedings, and who shall treat with the ambassadors of other nations, and conclude business in the general name of the confederates; but shall determine nothing that exceeds the bounds of their commission. How far the power of this council of delegates extends, is to be gathered from the words of the compact itself, or from the warrant and under which they act. This is certain; that the power whatever it be, is not their own, but derived to them from those whom they represent; and although the decrees, which they publish, pass solely under their own name, yet the whole force and authority of them flows from the states, themselves, by whose consent such a council hath been erected: so that the deputies are no more than ministers of the confederate states, and are altogether as unable to enjoin any thing by their own proper authority, as an ambassador is to command and govern his master.29
SECTION XIII.
The dissolution of these systems happens, when all the confederates by mutual consent, or some of them, voluntarily abandon the confederacy, and govern their own states apart; or a part of them form a different league and confederacy among each other, and withdraw themselves from the confederacy with the rest. Such was the proceeding on the part of those of the American states which first adopted the present constitution of the United States, and established a form of federal government, essentially different from that which was first established by the articles of confederation, leaving the states of Rhode Island and North Carolina, both of which, at first, rejected the new constitution, to themselves. This was an evident breach of that article of the confederation, which stipulated that those “articles should be inviolably observed by every state, and that the union should be perpetual; nor should any alteration at any time thereafter be made in any of them, unless such alteration be agreed to in the congress of the United States, and be afterwards confirmed by the legislatures of every state.” Yet the seceding states, as they may be not improperly termed, did not hesitate, as soon as nine states had ratified the new constitution, to supersede the former federal government and establish a new form, more consonant to their opinion of what was necessary to the preservation and prosperity of the federal union. But although by this act the seceding states subverted the former federal government, yet the obligations of the articles of confederacy as a treaty of perpetual alliance, offensive and defensive, between all the parties thereto, no doubt remained; and if North Carolina and Rhode Island had never acceded to the new form of government, that circumstance, I conceive, could never have lessened the obligation upon the other states to perform those stipulations on their parts which the states, who were unwilling to change the form of the federal government, had by virtue of those articles a right to demand and insist upon. For the inadequacy of the form of government established by those articles could not be charged upon one state more than another, nor had North Carolina or Rhode Island committed any breach of them; the seceding states therefore had no cause of complaint against them. On the contrary, these states being still willing to adhere to the terms of the confederacy, had the right of complaining, if there could be any right to complain of the conduct of states endeavoring to meliorate their own condition, by establishing a different form of government. But the seceding states were certainly justified upon that principle; and from the duty which every state is acknowledged to owe to itself, and its own citizens by doing whatsoever may best contribute to advance its own happiness and prosperity; and much more, what may be necessary to the preservation of its existence as a state.30 Nor must we forget that solemn declaration to which every one of the confederate states assented . … that whenever any form of government is destructive of the ends of its institution, it is the right of the people to alter or abolish it, and to institute new government. Consequently whenever the people of any state, or number of states, discovered the inadequacy of the first form of federal government to promote or preserve their independence, happiness, and union, they only exerted that natural right in rejecting it, and adopting another, which all had unanimously assented to, and of which no force or compact can deprive the people of any state, whenever they see the necessity, and possess the power to do it. And since the seceding states, by establishing a new constitution and form of federal government among themselves, without the consent of the rest, have shown that they consider the right to do so whenever the occasion may, in their opinion require it, as unquestionable, we may infer that that right has not been diminished by any new compact which they may since have entered into, since none could be more solemn or explicit than the first, nor more binding upon the contracting parties. Their obligation, therefore, to preserve the present constitution, is not greater than their former obligations were, to adhere to the articles of confederation; each state possessing the same right of withdrawing itself from the confederacy without the consent of the rest, as any number of them do, or ever did, possess. Prudence, indeed, will dictate, that governments established by compact should not be changed for light or transient causes; but should a long train of abuses and usurpations, pursuing invariably the same object, evince a design in any one of the confederates to usurp a dominion over the rest; or, if those who are entrusted to administer the government, which the confederates have for their mutual convenience established, should manifest a design to invade their sovereignty, and extend their own power beyond the terms of compact, to the detriment of the states respectively, and to reduce them to a state of obedience, and finally to establish themselves in a state of permanent superiority, it then becomes not only the right, but the duty of the states respectively, to throw off such government, and to provide new guards for their future security. To deny this, would be to deny to sovereign and independent states,
