Like other written contracts, it says shall, of course, because it speaks of the parties in the third person, and lays down the obligations imposed upon them by their own consent. This is a very simple law of language. But that is no reason why it should be overlooked by the great lights of jurisprudence.

"In compacts," says Judge Story, "we ourselves detertermine and promise, what shall be done, before we are obliged to do it." No words could more admirably suit our purpose, or the facts of the case. For each State agreed to the compact of the Constitution, which prescribes "what shall be done,” before it was bound by it. That "no State shall emit bills of credit," and so forth, is precisely the style which, according to Judge Story himself, as well as according to all usage, would be employed in articles of agreement between the States; and hence, to argue for the use of shall, instead of will, that the Constitution addresses the language of authority from the people of America to the States, is simply ridiculous. "In compacts;" says Story, "we ourselves determine and promise what shall be done, before we are obliged to do it." And yet, in the face of this obvious fact, he argues from the use of shall in the Constitution, that it is not what the State "determined and promised," but what they were commanded to do! that it is not, and cannot be a compact between the States at all!

A and B enter into articles of agreement. These articles, according to good usage, say what A shall do, and what B shall do. What shall we say, then, of these articles? Shall we say, that they do not form an agreement, or contract at all? Shall we say, that A commands B, or "addresses to him the language of authority," as a law-giver speaks to a subject? If so, then B also commands A, and each is evidently the master of the other! Precisely such is the profound logic of Mr. Justice Story!

CHAPTER XVI.

Arguments in favor of the Right of Secession.

In the preceding chapters, it has, I think, been clearly demonstrated, that the Constitution of the United States was a compact to which the several States were the parties. This, as we have seen, was most explicitly the doctrine maintained by the fathers of the Constitution, and was unequivocally set forth by the Federalist in submitting that instrument to the people, and that it is confirmed by all the historical records of the country. If any proposition, indeed, respecting the Constitution can be considered as unanswerably established, it is the doctrine of the Federalist, that the act by which it was ordained was “not a national, but a federal act;" having been ratified “by the people of America, not as individuals composing one nation, but as composing the distinct and independent States to which they belong;"* that the Constitution, "the compact," was established by "the States regarded as distinct and independent sovereigns." It is, then, on this clear, broad, immutable foundation, that the argument in favor of secession rests.

Argument in favor of Secession from the doctrine of reserved rights.

It is frequently asked, by the opponents of secession, where is the right of a State to withdraw from the Union set forth or contained in the Constitution? But this

* Federalist, No. XXXIX.

+Ibid, No. XL.

question betrays a gross ignorance with respect to the origin of State rights. These rights are not derived from the Constitution at all; on the contrary, all the rights, powers, or authorities of the Constitution are derived from the States. And all the rights not delegated to the Federal Government by the States, are reserved to the States themselves,-the original fountains of all the powers of "the Constitution of the United States." This is the doctrine set forth by the "Federalist" in submitting that instrument or Constitution to the people.

"The principles established in a former paper," says the Federalist, "teach us, that the States will retain all preexisting authorities which may not be exclusively delegated to the federal head."* In the former paper here referred to, it is said: "All authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor." In the ratifying Convention of Virginia, the same doctrine is set forth as well known to every one at that day, by John Marshall, who was afterward the illustrious Chief Justice of the Supreme Court of the United States. "The state governments," says he, "did not derive their powers from the general government. But each government derived its powers from the people, and each was to act according to the powers given it. Would any gentleman deny this? He demanded if powers not given, were retained by implication? Could any man say, no? Could any man say, that this power was not retained by the States, since it was not given away? For, says he, does not a power remain till it is given away?"†

Neither Marshall nor Hamilton, the author of the numbers of the Federalist just quoted, was ever suspected of a desire to lessen the authority of the Federal Union, or to magnify that of the States. Yet, as we have seen, both *Federalist No. LXXXII. † Federalist No. XXXII. Elliot's Debates, Vol. 3. p. 389.

of them assume as an undeniable principle, that every power which is not delegated by the States to the Federal Union, is retained by them in full vigor. This principle results, indeed, from the fact that all the powers of the Federal Government emanate from the peoples of the several States. The question of Marshall." does not a power remain till it was given away?" admits of but one answer. For if a principal delegates power to an agent of any kind, or for any purpose; the agent only possesses the delegated powers, and all others remain with the principal. Thus, according to the very nature of things, as well as according to the high authority of Hamilton and Marshall; the States retained all the powers which they had not delegated to the Federal Union.

But however plain this principle, or however fully admitted by the advocates of federal authority; the States still insisted that it should be expressly incorporated in the written language of the Constitution. Hence Massa

chusetts, having ratified the Constitution, used the following language: "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 many 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 alterations and provisions be introduced into said Constitution:

"First, That it be explicitly declared that all powers not expressly delegated by the aforesaid Constitution, are reserved to the several States, to be by them exercised."*

In like manner, and for a like reason, Virginia recommended the following "Amendment to the Constitution. 1st. That each State in the Union shall respectively retain every power, jurisdiction, and right, which is not by this Constitution delegated to the Congress of the *Elliot's Debates, Vol. II. p. 180.

United States, or to the departments of the Federal Government." 11* North Carolina urged the same amendment to the Constitution, and in precisely the same words as those employed by Virginia. In the first amendment proposed by Pennsylvania, we find the following words: "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."‡

These recommendations, and others to the same effect, secured the tenth amendment to the Constitution of the United States; which is in these words: "The powers not delegated to the United States by the Coustitution, nor prohibited by it to the States, are reserved to the States, or to the people." If reason, if authority, if history, if the words of the Constitution itself, can establish any thing; then may we regard it as definitively and forever settled, that every power, right, or authority which is not delegated to the Federal Union, is reserved to the States, or to the people of the States.

I ask, then, where is this great, inherent right of a State to resume the powers it has delegated, surrendered to the Federal Union? Where has this peerless right of sovereignty been ceded, surrendered, or given away? The people may rage, and the politicians imagine a vain thing; but I appeal to the great charter of American rights and liberties. Where, then, in the Constitution of the United States, is the sacred and inviolable right of a sovereign State to resume the powers it has delegated to its agents, given away or surrendered? When the States entered into "the compact of the Constitution," they did so, as it is conceded both by Story and Curtis, at the moment they were "free, sovereign, and independent States." Where, then, in that compact, did they delegate, surrender, or give away, the sacred right to resume the * Ibid. Vol. iii, p. 594. † Ibid, Vol. iv, p. 240. ‡ Ibid, Vol. ii, p. 503.