§ 309. It will be our object to present in a condensed form some of the principal expositions which have been insisted on at different times as to the nature and obligations of the Constitution, and to offer some of the principal objections which have been suggested against those expositions. To attempt a minute enumeration would indeed be an impracticable task; and considering the delicate nature of others, which are still the subject of heated controversy, where the ashes are scarcely yet cold which cover the concealed fires of former political excitements, it is sufficiently difficult to detach some of the more important from the mass of accidental matter in which they are involved. § 310. It has been asserted by a learned commentator,1 that the Constitution of the United States is an original, written, federal, and social compact, freely, voluntarily, and solemnly entered into by the several States, and ratified by the people thereof, respectively; whereby the several States and the people thereof respectively have bound themselves to each other and to the federal government of the United States, and by which the federal government is bound to the several States and to every citizen of the United States. The author proceeds to expound every part of this definition at large. It is, says he, a compact, by which it is distinguished from a charter or grant, which is either the act of a superior to an inferior, or is founded upon some consideration moving from one of the parties to the other, and operates as an exchange or sale.2 But here the contracting parties, whether considered as States in their political capacity and character, or as individuals, are all equal; nor is there anything granted from one to another, but each stipulates to part with and receive the same thing precisely without any distinction or difference between any of the parties. § 311. It is a federal compact. (a) Several sovereign and 1 1 Tucker's Black. Comm. App. note D. p. 140, et seq. 21 Tucker's Black. Comm. App. note D. p. 141. 8 Mr. Jefferson asserts that the Constitution of the United States is a compact between the States. "They entered into a compact," says he, in a paper designed to be (a) Mr. Calhoun has enlarged upon to the General Government," Works, VI. the view here taken by Mr. Jefferson in two elaborate papers: the "Discourse on the Constitution and Government of the United States," Works, I. 111; and the "Address on the Relations of the States 59. See also the review of this work by Judge A. P. Upshur (Petersburg, Va., 1840). If, however, anything can be regarded as settled in the constitutional law of any people, it must now be looked independent States may unite themselves together by a perpetual confederation without each ceasing to be a perfect State. They adopted by the legislature of Virginia as a solemn protest, "which is called the Constitution of the United States of America, by which they agreed to unite in a single government, as to their relations with each, and with foreign nations, and as to certain other articles particularly specified." 4 Jefferson's Corresp. 415. It would, I imagine, be very difficult to point out when and in what manner any such compact was made. The Constitution was neither made nor ratified by the States as sovereignties or political communities. It was framed by a convention, proposed to the people of the States for their adoption by Congress; and was adopted by State conventions, the immediate representatives of the people. upon as placed beyond further controversy, that the Constitution of the United States is an instrument of government, agreed upon and established in the several States by the people thereof, through representatives empowered for the purpose, operative upon the people individually and collectively, and, within the sphere of its powers, upon the government of the States also. And that the Union which is perfected by means of it is indissoluble through any steps contemplated by, or admissible under, its provisions or on the principles on which it is based, and can only be overthrown by physical force effecting a revolution. Such has been the view of the judicial department from the first, and the practice of the legislative and executive departments has corresponded thereto; Mr. Jefferson himself, as Mr. Calhoun mournfully concedes (Calhoun's Works, I. 359), having failed as President to offer practical resistance to this construction of the Constitution. And finally the people of the country, when some of the States endeavored to treat the Constitution as a compact from which they might withdraw when they deemed its provisions violated, have resisted this doctrine with the utmost expenditure of military force, and at an immense sacrifice of life and treasure have overthrown its adherents. In the courts, therefore, in the Cabinet, in the halls of legislation, and in the arbitrament of arms, the national view has invariably prevailed. It may be added, also, that the last great struggle has had the effect which able minds had anticipated as the result of the war (see Life of Gouverneur Morris, III. 260; Calhoun's Works, I. 361), -to strengthen considerably and in some directions to extend the national authority. Something of this has come from constitutional changes introduced for this express purpose; something from the great increase in federal offices, patronage, and expenditures; but more than all from the public mind becoming familiarized with the employment by the federal government of tremendous discretionary powers during the existence of hostilities, and of unusual and somewhat arbitrary measures afterwards in suppressing disorders in the territory lately in rebellion, and in reconstructing the shattered fabrics of State government. The constitution of any nation is practically what it has become by the practical construction of those in authority, acquiesced in by the people; and if doubtful points have been covered by that construction for purposes apparently beneficial, and under circumstances which incline the people to approval or indifference, there is very great probability that the ground thus occupied will be permanently possessed, and instead of being afterwards abandoned voluntarily, may not even be contested by those who might have done so with vigor and effect under other circumstances. How far this should be so we do not discuss; that it is so in fact is unquestionable. C. will together form a federal republic. The deliberations in common will offer no violence to each member, though they may in certain respects put some constraint on the exercise of it in virtue of voluntary engagements. The extent, modifications, and objects of the federal authority are mere matters of discretion. So long as the separate organization of the members remains, and, from the nature of the compact, must continue to exist, both for local and domestic and for federal purposes, the Union is in fact, as well as in theory, an association of States, or a confederacy. § 312. It is also, 'to a certain extent, a social compact. In the act of association, in virtue of which a multitude of men form together a state or nation, cach individual is supposed to have entered into engagements with all to procure the common welfare; and all are supposed to have entered into engagements with each other to facilitate the means of supplying the necessities of each individual, and to protect and defend him. And this is what is ordinarily meant by the original contract of society. But a contract of this nature actually existed in a visible form between the citizens of each State in their several constitutions. It might, therefore, be deemed somewhat extraordinary, that in the establishment of a federal republic it should have been thought necessary to extend its operation to the persons of individuals, as well as to the States composing the confederacy. § 313. It may be proper to illustrate the distinction between. federal compacts and obligations and such as are social, by one or two examples. A federal compact, alliance, or treaty is an act of the state or body politic, and not of an individual. On the contrary, a social compact is understood to mean the act of individuals about to create and establish a state or body politic among themselves. If one nation binds itself by treaty to pay a certain tribute to another, or if all the members of the same confederacy oblige themselves to furnish their quotas of a common expense when required, in either of these cases the state or body politic only, and not the individual, is answerable for this tribute or quota. This is, therefore, a federal obligation. But where by any compact, express or implied, a number of persons are bound to contribute their proportions of the common ex 1 1 Tucker's Black. Comm. App. note D, p. 8 Id. p. 145. penses, or to submit to all laws made by the common consent, and where in default of compliance with these engagements the society is authorized to levy the contribution or to punish the person of the delinquent, this seems to be understood to be more in the nature of a social than a federal obligation.1 § 314. It is an original compact. Whatever political relation existed between the American colonics antecedent to the Revolution, 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 Revolu tion 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.2 1 1 Tucker's Black. Comm. App. note D, p. 145. 21 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 colonics, 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." § 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 phenomenon. In every State a written Constitution was framed and adopted by the people both in their indvidual and Sovereign capacity and character.1 (a) § 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.2 § 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 1 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. 21 Tucker's Black. Comm. App. note D, pp. 155, 156. (a) 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. |