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permanent subsistence of parties having an independent right to construe, control and judge of its obligations. If in this latter sense, it is to be deemed a compact, it must be, either because it contains, on its face, stipulations to that effect, or because it is necessarily implied, from the nature and objects of a frame of government.” There is a want of appositeness and accuracy in the first sentence of this extract, which renders it somewhat difficult to determine whether the author designed it as a single proposition, or as a series of independent propositions. If the first, there is not one person in the United States, it is presumed, who would venture to differ from him. I confess, however, that I do not very clearly discern what bearing it has on the question he was examining. It involves no point of difference between political parties, nor does it propound any question which has heretofore been contested, or which may be expected to arise hereafter, touching the true nature of the Constitution. If he “de-r, 63 signed a series of propositions, then the two first are so [*68] obviously false, that the author himself would not venture to maintain them, and the last is so obviously true, that no one would dream of denying it. For example. He can scarcely mean to say that our government is not a “contract,” whether made by the States as such, or by “the people of the United States;” and it is perfectly clear that it “contemplates the permanent subsistence of the parties to it,” whoever those parties may be. These two propositions, therefore, taken distinctly, are not true in themselves, and neither of them was necessary, as qualifying or forming a part of the third. And, as to the third, it is not easy to see why he announced it, since it never entered into the conception of any one, that the parties to the Constitution had “an independent right,” as a general right, “to construe, control or judge of its obligations.” We all admit that the power and authority of the federal government, within its constitutional sphere, are superior to those of the States, in some instances, and co-ordinate in others, and that every citizen is under an absolute obligation to render them respect and obedience; and this simply because his own State, by the act of ratifying the Constitution, has commanded him to do so. We all admit it to be true, as a general proposition, that no citizen

nor State has an independent right to “construe,” and still less to “control,” the constitutional obligations of that government, and that neither a citizen nor a State can “judge,” that is, decide, on the nature and extent of those obligations, with a view to control them. All that has ever been contended for is, that a State has a right to judge of its own obligations, and, consequently, to judge of those of the federal government, so far as they relate to such State itself, and no farther. It is admitted on all hands, that when the federal government transcends its constitutional power, and when, of course, it is not acting within its “obligations,” the parties to that government, whoever they may be, are no longer under any duty to respect or obey it. This has been repeatedly affirmed by our courts, both State and federal, and has never been denied by any class of politicians. Who then is to determine, whether it has so transcended its constitutional obligations or not ? It is admitted that to a certain extent the supreme court is the proper tribunal in the last resort, because the States, in establishing that tribunal, have expressly agreed to make it so. The jurisdiction of the federal courts extends to certain cases, affecting the rights of the individual citizens, and to certain others affecting those of the individual States. So far as the federal government is authorized to act on the individual citizen, the powers of the one and the [*64] rights of *the other, are properly determinable by the

federal courts. And the decision is binding too, and absolutely final, so far as the relation of the citizen to the federal government is concerned. There is not, within that system, any tribunal of appeal, from the decisions of the supreme court. And so also of those cases in which the rights of the States are referred to the federal tribunals. In this sense, and to this extent, it is strictly true that the parties have not “an independent right to construe, control and judge, of the obligations” of the federal government, but they are bound by the decisions of the federal courts, so far as they have authorized and agreed to submit to them. But there are many cases involving the question of federal power which are not cognizable before the federal courts; and, of course, as to these, we must look out for some other umpire. It is precisely in this case that the question, who are the parties to the constitution, becomes all important and

controlling. If the States are parties as sovereign States, then
it follows, as a necessary consequence, that each of them has
the right which belongs to every sovereignty, to construe its
own contracts and agreements, and to decide upon its own rights
and powers. I shall take occasion, in a subsequent part of this
review, to enter more fully into the question, who is the com-
mon umpire. The statement here given, of the leading point
of difference between the great political parties of the country,
is designed only to show that the author's proposition does not
involve it. That proposition may mislead the judgment of the
reader, but cannot possibly enlighten it, in regard to the true
nature of the Constitution.
He has been scarcely less unfortunate in the next proposition.
Taking his words in their most enlarged sense, he is probably
correct in his idea, though he is not accurate in his language;
but in the sense in which his own reasoning shows that he him-
self understands them, his proposition is wholly untenable. If,
by the words “stipulations to that effect,” he means simply that
the effect must necessarily result from the provisions of the
Constitution, he has merely asserted a truism which no one will
dispute with him. Certainly, if it does not result from the na-
ture of all government, that it is a compact, and if there be
nothing in our Constitution to show that it is so, then it is not
a compact. His own reasoning, however, shows that he means
by the word “stipulations,” something in the nature of express
agreement or declaration; and, in that sense, the proposition is
obviously untrue, and altogether defective as a statement for
argument. It is very possible that our Constitution may be a
compact, even though it contain no express agreement or de-
claration so denominating it, and *though it may not r, 65
“result from the nature and objects of a frame of govern- [*65]
ment,” that it is so; and this simply because it may “result
from the nature and objects of our government” that it is a
compact, whether such be the result of other governments or
not. If the author designed to take this view of the subject,
the examination which he has given of the Constitution, in re-
ference to it, is scarcely as extended and philosophical as we
had a right to expect from him. He has not even alluded to
the frame and structure of the government in its several depart-


ments, nor presented any such analysis of it in any respect, as to enable the reader to form any satisfactory conclusion as to its true character in the particular under consideration. Every thing which he has urged as argument to prove his proposition, may well be true, and every sentence of the Constitution, which he has cited for that purpose, may be allowed its full effect, and yet our government may be a compact, even in the strictest Sense in which he has understood the term. His first argument is, that the “United States were no strangers to compacts of this nature,” and that those who ratified the Constitution, if they had meant it as a compact, would have used “appropriate terms” to convey that idea. I have already shown that if he means by this, that the Constitution would have contained some express declaration to that effect, he is altogether inaccurate. He himself knows, as a judge, that a deed, or other instrument, receives its distinctive character, not from the name which the parties may choose to give to it, but from its legal effect and operation. The same rule applies to constitutions. Ours is a compact or not, precisely as its provisions make it so, or otherwise. The question, who are the parties to it, may influence, and ought to influence, the construction of it in this respect; and I propose presently to show, from this and other views of it, that it is, in its nature, “a mere confederation,” and not a consolidated government, in any one respect. It does, therefore, contain “appropriate terms,” if we take those words in an enlarged sense, to convey the idea of a compact. Our author supposes, however, that a “conclusive” argument upon this subject is furnished by that clause of the Constitution which declares that “This Constitution, and the laws of the United States, which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State, shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwith[*66] standing.” Hence he concludes that “the *people of any State cannot, by any form of its own constitution or laws, or other proceedings, repeal, or abrogate or suspend it.” Here again the author displays a want of proper definiteness


and precision, in the statement of his proposition. The people who make a law, can, upon the principles of all our institutions, either “repeal or abrogate or suspend it;” and if, as he supposes, our constitution was made by “the people of the United States,” in the aggregate, then “the people of any State,” or of half a State, may repeal, or abrogate, or suspend it, if they happen to be a majority of the whole. The argument, therefore, if we are to take it in the full latitude in which it is laid down, is not sound, upon the author's own principles; and it can avail nothing, except upon the very supposition which he disallows; to wit, that the Constitution was formed by the States, and not by the people of the United States. Even in this acceptation, however, I am at a loss to perceive how it establishes the proposition with which he set out; to wit, that the Constitution is not a compact. Certainly it is very possible so to frame a compact, that no party to it shall have a right either to “repeal or abrogate or suspend it;” and if it be possible to do so, then the mere absence of such right does not even tend to disprove the existence of compact. Our own Constitution, even in the opinion of those who are supposed by the author to be least friendly to it, is a compact of precisely this nature. The Nullifier contends only for the right of a State to prevent the Constitution from being violated by the general government, and not for the right either to repeal, abrogate or suspend it. The Seceder asserts only that a State is competent to withdraw from the Union whenever it pleases; but does not assert that in so doing it can repeal, or abrogate or suspend the Constitution, as to the other States. Secession would, indeed, utterly destroy the compact as to the seceding party; but would not necessarily affect its obligation as to the rest. If it would, then the rest would have no right to coerce the seceding State, nor to place her in the attitude of an enemy. It is certain, I think, they would not have such right; but those who assert that they would—and the author is among the number—must either abandon that idea, or they must admit that the act of secession does not break up the Constitution, except as to the seceding State. For the moment the Constitution is destroyed, all the authorities which it has established cease to exist. There is no longer such a government as that of the United States, and, of

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