national existence. This important consideration, seriously and deeply impressed on our minds, led each state in the convention to be less rigid on points of inferior magnitude, than might have been otherwise expected. And thus the constitution, which we now present, is the result of a spirit of amity, and of that mutual deference and concession, which the peculiarity of our political situation rendered indispensable."'

Rhode Island declined sending delegates to the convention for framing the constitution. Eleven of the states having adopted it, sent representatives to the first congress, a quorum of which was not assembled at New York, the appointed place of meeting, until April, 1789, on the 30th of which month President Washington took the oath of office. The constitution was ratified by North Carolina in November following, and lastly by Rhode Island in May, 1790; and thus was consummated a work too great, too magnificent to have been achieved without obstacles and gigantic efforts. It is interesting to retrace, in these commentaries, the sectional prejudices, the wild apprehensions, the futile suspicions, and absurd objections, which actuated so many in every state to withstand its adoption. Some of the states fondly clung to the privilege of making paper money and enacting stop laws. The small states were jealous of the larger ones, as if these latter were more to be feared as fellow citizens, than as aliens, and so, whenever they might choose, aggressors and enemies. One great point of division of the parties related to the extent of powers granted to the government.

'Perhaps, from the very nature and organization of our government, being partly federal and partly national in its character, whatever modifications in other respects parties may undergo, there will forever continue to be a strong line of division between those, who adhere to the state governments, and those, who adhere to the national government, in respect to principles and policy. It was long ago remarked, that in a contest for power, "the body of the people will always be on the side of the state governments. This will not only result from their love of liberty and regard to their own safety, but from other strong principles of human nature. The state governments operate

1 12 Journ. of Cong. 109, 110; Journ. of Convention, 367, 368; 5 Marsh. Life of Wash. 129.

1

upon those familiar personal concerns, to which the sensibility of individuals is awake. The distribution of private justice, in a great measure belonging to them, they must always appear to the sense of the people as the immediate guardians of their rights. They will of course have the strongest hold on their attachment, respect, and obedience." To which it may be added, that the state governments must naturally open an easier field for the operation of domestic ambition, of local interests, of personal popularity, and of flattering influence to those, who have no eager desire for a wide spread fame, or no acquirements to justify it.

On the other hand, if the votaries of the national government are fewer in number, they are likely to enlist in its favor men of ardent ambition, comprehensive views, and powerful genius. A love of the Union; a sense of its importance, nay, of its necessity, to secure permanence and safety to our political liberty; a consciousness, that the powers of the national constitution are eminently calculated to preserve peace at home, and dignity abroad, and to give value to property, and system and harmony to the great interests of agriculture, commerce, and manufactures; a consciousness, too, that the restraints, which it imposes upon the states, are the only efficient means to preserve public and private justice, and to ensure tranquillity amidst the conflicting interests and rivalries of the states: these will, doubtless, combine many sober and reflecting minds in its support. If to this number we add those, whom the larger rewards of fame, or emolument, or influence, connected with a wider sphere of action, may allure to the national councils, there is much reason to presume, that the Union will not be without resolute friends.

'This view of the subject, on either side, (for it is the desire of the commentator to abstain, as much as possible, from mere private political speculation,) is not without its consolations. If there were but one consolidated national government, to which the people might look up for protection and support, they might in time relax in that vigilance and jealousy, which seem so necessary to the wholesome growth of republican institutions. If, on the other hand, the state governments could engross all the

1 Gen. Hamilton's Speech in 1786; 1 Amer. Museum, 445, 447. See also The Federalist, No. 17, 31, 45, 46.

affections of the people, to the exclusion of the national government, by their familiar and domestic regulations, there would be danger, that the Union, constantly weakened by the distance and discouragements of its functionaries, might at last become, as it was under the confederation, a mere show, if not a mockery of sovereignty. So, that this very division of empire may, in the end, by the blessing of providence, be the means of perpetuating our rights and liberties, by keeping alive in every state at once a sincere love of its own government, and a love of the Union, and by cherishing in different minds a jealousy of each, which shall check, as well as enlighten, public opinion.'

Probably many of those who are jealous of an excess of power in the government, are not actuated merely by a preference of the state government; but by a jealousy of government as such. They do not generally attempt to show any advantage from the exercise of the disputed powers by the states, but the argument more usually goes to demonstrate the evils and danger of all power in any kind of government. It is very frequently an indirect implicit eulogy upon the savage state, and too often suggested by a desire to be above the laws, which might be hoped for under a feeble government. The very object of forming a government is to give it powers for the protection of the citizens. Having once secured the weight of the popular voice and influence in making laws, the main question then is, whether the government is so constituted as that the officers shall be bound by them. All the power that gives force to the law, and makes it supreme, is a security to the freedom of the citizen. Weak governments are those that degenerate into a mere domination of faction, or into a military tyranny through their very weakness, for if the government is not strong enough to protect individuals, they resort to voluntary combinations or factions, independent of law, for protection. This is perceived by many of those who oppose the granting of powers to government in general, merely because they wish for the chance of raising themselves above the law, and they know they have a better prospect of doing so under a feeble government than under one that has powers sufficient to make the law respected. We cannot but believe that this is the secret of some of the opposition to the constitution at the time of its adoption, and of still more since that time.

The objections from different quarters were not only of different degrees and magnitude, but often of totally opposite natures. With some persons the mass of the powers was a formidable objection; with others, the distribution of those powers. With some the equality of vote in the senate was exceptionable; with others the inequality of representation in the house. With some the power of regulating the times and places of elections was fatal; with others the power of regulating commerce by a bare majority. With some the power of direct taxation was an intolerable grievance; with others the power of indirect taxation by duties on imports. With some the restraint of the state legislatures from laying duties upon exports and passing ex post facto laws was incorrect; with others the lodging of the executive power in a single magistrate.' With some the term of office of the senators and representatives was too long; with others the term of office of the president was obnoxious to a like censure, as well as his re-eligibility." With some the intermixture of the legislative, executive, and judicial functions in the senate was a mischievous departure from all ideas of regular government; with others the non-participation of the house of representatives in the same functions was the alarming evil. With some the powers of the president were alarming and dangerous to liberty; with others the participation of the senate in some of those powers. With some the powers of the judiciary were far too extensive; with others the power to make treaties even with the consent of two thirds of the senate. With some the power to keep up a standing army was a sure introduction to despotism; with others the power over the militia. With some the paramount authority of the constitution, treaties, and laws of the United States was a dangerous feature; with others the small number composing the senate and the house of representatives was an alarming and corrupting evil. pp. 271, 272.

72.

The author goes into an investigation of the question whether

1 2 Amer. Museum, 534, 536, 540; Id. 427, 435; Id. 547, 555.

23 Amer. Museum, 62; 2 Pitk. Hist. 283, 284; The Federalist, No. 71,

See 2 Amer. Museum, 422, &c.; Id. 435; Id. 534; Id. 540, &c. 543, &c.; Id. 553; 3 Amer. Museum, 62; Id. 157; Id. 419, 420, &c.

Many of the objections are summed up in the Federaliat, No. 38, with great force and ability.

the government of the United States is a compact, and we wish we had space to extract all he has said on this subject. He explains, that is, as far as any explanation can be given, and mostly, in the language of Judge Tucker, what is meant in Virginia by the doctrine of 1798.

"The obvious deductions, which may be, and indeed have been, drawn from considering the constitution as a compact between the states, are, that it operates as a mere treaty, or convention between them, and has an obligatory force upon each state no longer, than suits its pleasure, or its consent continues; that each state has a right to judge for itself in relation to the nature, extent, and obligations of the instrument, without being at all bound by the interpretation of the federal government, or by that of any other state; and that each retains the power to withdraw from the confederacy and to dissolve the connexion, when such shall be its choice; and may suspend the operations of the federal goverment, and nullify its acts within its own territorial limits, whenever, in its own opinion, the exigency of the case may require.' These conclusions may not always be avowed; but they flow naturally from the doctrines, which we have under consideration. They go to the extent of reducing

1 Virginia, in the resolutions of her legislature on the tariff, in Feb. 1829 declared, "that there is no common arbiter to construe the constitution; being a federative compact between sovereign states, each state has a right to construe the compact for itself." 9 Dane's Abridg. ch. 187, art. 20, § 14, p. 589. See also North American Review, Oct. 1830, p. 488 to 528. The resolutions of Kentucky of 1798 contain a like declaration, that " to this compact [the constitution] each state acceded as a state, and is an integral party; that the government created by this compact was not made the exclusive, or final judge of the powers delegated to itself, &c.; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions, as of the mode and measure of redress." North American Review, Oct. 1830, p. 501. The Kentucky resolutions of 1799 go further, and assert, "that the several states, who formed that instrument, [the constitution] being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification by those sovereignties of all unauthorized acts done under color of that instrument is the rightful remedy." North American Review, Id. 503; 4 Elliot's Debates, 315, 322. In Mr. Madison's Report in the Virginia legislature, in January, 1800, it is also affirmed, that the states are parties to the constitution; but by states he here means (as the context explains) the people of the states. That report insists, that the states are in the last resort the ultimate judges of the infractions of the constitution. p. 6, 7, 8, 9.

? I do not mean to assert, that all those, who held these doctrines, have