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 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 people of the United States, as

fractional parts of a whole, of which she was herself a fraction, but she

was jealous of them as _States_; as so many foreign peoples, with whom she

was contracting. The powers not delegated were to be reserved to those

_delegating_ them, to wit: the "_several States_;" that is to say, to each

and every one of the States.

Virginia fought long and sturdily against adopting the Constitution at

all. Henry, Mason, Tyler, and a host of other giants raised their

powerful voices against it, warning their people, in thunder tones, that

they were rushing upon destruction. Tyler even went so far as to say that

"British tyranny would have been more tolerable." So distasteful to her

was the foul embrace that was tendered her, that she not only recommended

an amendment of the Constitution, similar to that which was recommended by

Massachusetts, making explicit reservation of her sovereignty, but she

annexed a condition to her ratification, to the effect that she retained

the right to withdraw the powers which she had granted, "whenever the same

shall be perverted to her injury or oppression."

North Carolina urged the following amendment--the same, substantially, as

that urged by Virginia and Massachusetts: "That each State in the Union

shall respectively [not aggregately] retain every power, jurisdiction, and

right which is not by this Constitution delegated to the Congress of the

United States, or to the departments of the Federal Government."

Pennsylvania guarded her sovereignty by insisting upon the following

amendment: "All the rights of sovereignty which are not, by the said

Constitution, expressly and plainly vested in the Congress, shall be

deemed to remain with, and shall be exercised by the several States in the

Union." The result of this jealousy on the part of the States was the

adoption of the 10th amendment to the Constitution of the United States as

follows: "The powers not delegated to the United States, by the

Constitution, nor prohibited by it to the States, are reserved to the

States, or to the people."

It is thus clear beyond doubt, that the States not only had no intention

of merging their sovereignty in the new government they were forming, but

that they took special pains to notify each other, as well as their common

agent, of the fact. The language which I have quoted, as used by the

States, in urging the amendments to the Constitution proposed by them, was

the common language of that day. The new government was a federal or

confederate government--in the "Federalist," it is frequently called a

"Confederation"--which had been created by the States for their common use

and benefit; each State taking special pains, as we have seen, to declare

that it retained all the sovereignty which it had not expressly granted

away. And yet, in face of these facts, the doctrine has been boldly

declared, in our day, that the Constitution was formed by the people of

the United States in the aggregate, as one nation, and that it has a force

and vitality independent of the States, which the States are incompetent

to destroy! The perversion is one not so much of doctrine as of history.

It is an issue of fact which we are to try.

It is admitted, that if the fact be as stated by our Northern brethren,

the conclusion follows: It is, indeed, quite plain, that if the States did

not create the Federal Constitution, they cannot destroy it. But it is

admitted, on the other hand, by both Webster and Story, as we have seen,

that if they did create it, they may destroy it; nay, that any one of them

may destroy it as to herself; that is, may withdraw from the compact at

pleasure, with or without reason. It is fortunate for us of the South that

the issue is so plain, as that it may be tried by the record. Sophistry

will sometimes overlie reason and blind men's judgment for generations;

but sophistry, with all its ingenuity, cannot hide a fact. The speeches of

Webster and the commentaries of Story have been unable to hide the fact of

which I speak; it stands emblazoned on every page of our constitutional

history.

Every step that was taken toward the formation of the Constitution of the

United States, from its inception to its adoption, was taken by the

States, and not by the people of the United States in the aggregate. There

was no such people known as the people of the United States, in the

aggregate, at the time of the formation of the Constitution. If there is

any such people now, it was formed by the Constitution. But this is not

the question. The question now is, who formed the Constitution, not what

was formed by it? If it was formed by the States, admit our adversaries,

it may be broken by the States.

The delegates who met at Annapolis were sent thither by the States, and

not by the people of the United States. The Convention of 1787, which

formed the Constitution, was equally composed of members sent to

Philadelphia by the States. James Madison was chosen by the people of

Virginia, and not by the people of New York; and Alexander Hamilton was

chosen by the people of New York, and not by the people of Virginia. Every

article, section, and paragraph of the Constitution was voted for, or

against, by States; the little State of Delaware, not much larger than a

single county of New York, off-setting the vote of that great State.

And when the Constitution was formed, to whom was it submitted for

ratification? Was there any convention of the people of the United States

in the aggregate, as one nation, called for the purpose of considering it?

Did not each State, on the contrary, call its own convention? and did not

some of the States accept it, and some of them refuse to accept it? It was

provided that when nine States should accept it, it should go into

operation; was it pretended that the vote of these nine States was to bind

the others? Is it not a fact, on the contrary, that the vote of eleven

States did _not_ bind the other two? Where was that great constituency,

composed of the people of the United States in the aggregate, as one

nation, all this time?

"But," say those who are opposed to us in this argument, "look at the

instrument itself, and you will see that it was framed by the people of

the United States, and not by the States. Does not its Preamble read thus:

'We, the people of the United States, in order to form a more perfect

Union, &c., do ordain and establish this Constitution for the United

States of America'?" Perhaps there has never been a greater literary and

historical fraud practised upon any people, than has been attempted in the

use to which these words have been put. And, perhaps, no equal number of

reading and intelligent men has ever before submitted so blindly and

docilely to be imposed upon by literary quackery and the legerdemain of

words, as our fellow-citizens of the North have in accepting Webster's and

Story's version of the preamble of the Constitution.

A brief history of the manner, in which the words, "We, the people," &c.,

came to be adopted by the Convention which framed the Constitution, will

sufficiently expose the baldness of the cheat. The only wonder is, that

such men as Webster and Story should have risked their reputations with

posterity, on a construction which may so easily be shown to be a

falsification of the facts of history. Mr. Webster, in his celebrated

speech in the Senate, in 1833, in reply to Mr. Calhoun, made this bold

declaration: "The Constitution itself, in its very front, declares, that

it was ordained and established by the people of the United States in the

aggregate!" From that day to this, this declaration of Mr. Webster has

been the chief foundation on which all the constitutional lawyers of the

North have built their arguments against the rights of the States as

sovereign copartners.

If the Preamble of the Constitution stood alone, without the lights of

contemporaneous history to reveal its true character, there might be some

force in Mr. Webster's position; but, unfortunately for him and his

followers, he has _misstated a fact_. It is not true, as every reader of

constitutional history must know, that the Constitution of the United

States was ordained by the people of the United States in the aggregate;

nor did the Preamble to the Constitution _mean to assert_ that it was

true. The great names of Webster, and Story have been lent to a palpable

falsification of history, and as a result of that falsification, a great

war has ensued, which has sacrificed its hecatomb of victims, and

desolated, and nearly destroyed an entire people. The poet did not say,

without reason, that "words are things." Now let us strip off the

disguises worn by these word-mongers, and see where the truth really lies.

Probably some of my readers will learn, for the first time, the reasons

which induced the framers of the Constitution to adopt the phraseology,

"We, the people," &c., in the formation of their Preamble to that

instrument. In the original draft of the Constitution, the States, by

name, were mentioned, as had been done in the Articles of Confederation.

The States had formed the old Confederation, the States were equally

forming the new Confederation; hence the Convention naturally followed in

their Preamble the form which had been set them in the old Constitution,

or Articles. This Preamble, purporting that the work of forming the new

government was being done by the States, remained at the head of the

instrument _during all the deliberations of the Convention_, and no one

member ever objected to it. It expressed a fact which no one thought of

denying. It is thus a fact beyond question, not only that the

Constitution was framed by the States, but that the Convention so

proclaimed in "_front of the instrument_."

Having been framed by the States, was it afterward adopted, or "ordained

and established," to use the words of Mr. Webster, by the people of the

United States, in the aggregate, and was this the reason why the words

were changed? There were in the Convention several members in favor of

submitting the instrument to the people of the United States in the

aggregate, and thereby accomplishing their favorite object of establishing

a consolidated government--Alexander Hamilton and Gouverneur Morris among

the number. On the "Journal of the Convention," the following record is

found: "Gouverneur Morris moved that the reference of the plan [i. e. of

the Constitution] be made to one General Convention, chosen and authorized

by the people, to consider, amend, and establish the same." Thus the

question, as to who should "ordain and establish" the Constitution,

whether it should be the people in the aggregate, or the people of the

States, was clearly presented to the Convention. How did the Convention

vote on this proposition? The reader will perhaps be surprised to learn,

that the question was not even brought to a vote, for want of a second;

and yet this is the fact recorded by the Convention.

The reader who has read Mr. Madison's articles in the "Federalist," and

his speeches before the Virginia Convention, in favor of the ratification

of the Constitution, will perhaps be surprised to learn that he, too, made

a somewhat similar motion. He was not in favor, it is true, of referring

the instrument for adoption to a General Convention of the whole people,

alone, but he was in favor of referring it to such a Convention, in

connection with Conventions to be called by the States, thus securing a

joint or double ratification, by the people of the United States in the

aggregate, and by the States; the effect of which would have been to make

the new government a still more complex affair, and to muddle still

further the brains of Mr. Webster and Mr. Justice Story. But this motion

failed also, and the Constitution was referred to the States for adoption.

But now a new question arose, which was, whether the Constitution was to

be "ordained and established" by the legislatures of the States, or by

the people of the States in Convention. All were agreed, as we have seen,

that the instrument should be referred to the States. This had been

settled; but there were differences of opinion as to how the States should

act upon it. Some were in favor of permitting each of the States to

choose, for itself, how it would ratify it; others were in favor of

referring it to the legislatures, and others, again, to the people of the

States in Convention. It was finally decided that it should be referred to

Conventions of the people, in the different States.

This being done, their work was completed, and it only remained to refer

the rough draft of the instrument to the "Committee on Style," to prune

and polish it a little--to lop off a word here, and change or add a word

there, the better to conform the language to the sense, and to the

proprieties of grammar and rhetoric. The Preamble, as it stood, at once

presented a difficulty. All the thirteen States were named in it as

adopting the instrument, but it had been provided, in the course of its

deliberations by the Convention, that the new government should go into

effect if nine States adopted it. Who could tell which these nine States

would be? It was plainly impossible to enumerate all the States--for all

of them might not adopt it--or any particular number of them, as adopting

the instrument.

Further, it having been determined, as we have seen, that the Constitution

should be adopted by the people of the several States, as

contra-distinguished from the legislatures of the States, the phraseology

of the Preamble must be made to express this idea also. To meet these two

new demands upon the phraseology of the instrument, the Committee on Style

adopted the expression, "We, the people of the United States,"--meaning,

as every one must see, "We, the people of the several States united by

this instrument." And this is the foundation that the Northern advocates

of a consolidated government build upon, when they declare that the people

of the United States in the aggregate, as one nation, adopted the

Constitution, and thus gave the fundamental law to the States, instead of

the States giving it to the Federal Government.

It is well known that this phrase, "We, the people," &c., became a

subject of discussion in the Virginia ratifying Convention. Patrick Henry,

with the prevision of a prophet, was, as we have seen, bitterly opposed to

the adoption of the Constitution. He was its enemy _a l'outrance_. Not

having been a member of the Convention, of 1787, that framed the

instrument, and being unacquainted with the circumstances above detailed,

relative to the change which had been made in the phraseology of its

Preamble, he attacked the Constitution on the very ground since assumed by

Webster and Story, to wit: that the instrument itself proclaimed that it

had been "ordained and established" by the people of the United States in

the aggregate, instead of the people of the States. Mr. Madison replied to

Henry on this occasion. Madison had been in the Convention, knew, of

course, all about the change of phraseology in question, and this was his

reply: "The parties to it [the Constitution] were the people, but not the

people as composing one great society, but the people as composing

thirteen sovereignties. If it were a consolidated government," continued

he, "the assent of a majority of the people would be sufficient to

establish it. But it was to be binding on the people of a State only by

their own separate consent." There was, of course, nothing more to be

said, and the Virginia Convention adopted the Constitution.

Madison has been called the Father of the Constitution. Next to him,

Alexander Hamilton bore the most conspicuous part in procuring it to be

adopted by the people. Hamilton, as is well known, did not believe much in

republics; and least of all did he believe in federal republics. His great

object was to establish a consolidated republic, if we must have a

republic at all. He labored zealously for this purpose, but failed. The

States, without an exception, were in favor of the federal form; and no

one knew better than Hamilton the kind of government which had been

established.

Now let us hear what Hamilton, an unwilling, but an honest witness, says

on this subject. Of the eighty-five articles in the "Federalist," Hamilton

wrote no less than fifty. Having failed to procure the establishment of a

consolidated government, his next great object was, to procure the

adoption by the States of the present Constitution, and to this task,

accordingly, he now addressed his great intellect and powerful energies.

In turning over the pages of the "Federalist," we can scarcely go amiss in

quoting Hamilton, to the point that the Constitution is a compact between

the States, and not an emanation from the people of the United States in

the aggregate. Let us take up the final article, for instance, the 85th.

In this article we find the following expressions: "The compacts which are

to embrace thirteen distinct States in a common bond of amity and Union,

must necessarily be compromises of as many dissimilar interests and

inclinations." Again: "The moment an alteration is made in the present

plan, it becomes, to the purpose of adoption, a new one, and must undergo

a new decision of each State. To its complete establishment throughout the

Union, it will, therefore, require the concurrence of thirteen States."

And again: "Every Constitution for the United States must, inevitably,

consist of a great variety of particulars, in which thirteen _Independent

States_ are to be accommodated in their interests, or opinions of

interests. * * * Hence the necessity of moulding and arranging all the

particulars which are to compose the whole in such a manner as to satisfy

all the _parties to the compact_." Thus, we do not hear Hamilton, any more

than Madison, talking of a "people of the United States in the aggregate"

as having anything to do with the formation of the new charter of

government. He speaks only of States, and of compacts made or to be made

by States.

In view of the great importance of the question, whether it was the people

of the United States in the aggregate who "ordained and established" the

Constitution, or the States,--for this, indeed, is the whole _gist_ of the

controversy between the North and South,--I have dwelt somewhat at length

on the subject, and had recourse to contemporaneous history; but this was

scarcely necessary. The Constitution itself settles the whole controversy.

The 7th article of that instrument reads as follows: "The ratification of

the Conventions of nine States shall be sufficient for the establishment

of the Constitution between the States so ratifying the same." How is it

possible to reconcile this short, explicit, and unambiguous provision with

the theory I am combating? The Preamble, as explained by the Northern

consolidationists, and this article, cannot possibly stand together. It is

not possible that the people of the United States in the aggregate, as one

nation, "ordained and established" the Constitution, and that the States

ordained and established it at the same time; for there was but one set of

Conventions called, and these Conventions were called by the States, and

acted in the names of the States.

Mr. Madison did, indeed, endeavor to have the ratification made in both

modes, but his motion in the Convention to this effect failed, as we have

seen. Further, how could the Constitution be binding only between the

States that ratified it, if it was not ratified--that is, not "ordained

and established"--by them at all, but by the people of the United States

in the aggregate? As remarked by Mr. Madison, in the Virginia Convention,

a ratification by the people, in the sense in which this term is used by

the Northern consolidationists, would have bound all the people, and there

would have been no option left the dissenting States. But the 7th article

says that they shall have an option, and that the instrument is to be

binding only _between such of them as ratify it_.

With all due deference, then, to others who have written upon this vexed

question, and who have differed from me in opinion, I must insist that the

proof is conclusive that the Constitution is a compact between the States;

and this being so, we have the admission of both Mr. Webster and Justice

Story that any one of the States may withdraw from it at pleasure.

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