draw after it the conclusion, that it was to be deemed a compact, (in the sense, to which we have so often alluded,) by which each state was still, after the ratification, to act upon it, as a league or treaty, and to withdraw from it at pleasure. A government may originate in the voluntary compact or assent of the people of several states, or of a people never before united, and yet when adopted and ratified by them, be no longer a matter resting in compact; but become an executed government or constitution, a fundamental law, and not a mere league. But the difficulty in asserting it to be a compact between the people of each state, and all the people of the other states is, that the constitution itself contains no such expression, and no such designation of parties. We, "the people of the United States, &c. do ordain, and establish this constitution," is the language; and not we, the people of each state, do establish this compact between ourselves, and the people of all the other states. We are obliged to depart from the words of the instrument, to sustain the other interpretation; an interpretation, which can serve no better purpose, than to confuse the mind in relation to a subject otherwise clear. It is for this reason, that we should prefer an adherence to the words of the constitution, and to the judicial exposition of these words according to their plain and common import.2

1 See Dane's App. § 32, 33, p. 41, 42, 43.

2 Chisholm v. Georgia, 2 Dall. 419; 2 Cond. Rep. 668, 671; Martin v. Hunter, 1 Wheat. R. 364, 324 ; Dane's App. p. 22, 24, 29, 30, 37, 39, 40, 41, 42, 43, 51.

This subject is considered with much care by President Monroe in his Exposition, accompanying his Message, of the 4th of May, 1822. It is due to his memory to insert the following passage, which exhibits his notion of the supremacy of the Union.

"The constitution of the United States being ratified by the people of the several states, became, of necessity, to the extent of its powers, the paramount authority of the Union. On sound principles, it can be view

§ 366. But supposing, that it were to be deemed such a compact among the people of the several states, let us see what the enlightened statesman, who vindi

ed in no other light. The people, the highest authority known to our system, from whom all our institutions spring, and on whom they depend, formed it. Had the people of the several states thought proper to incorporate themselves into one community under one government, they might have done it. They had the power, and there was nothing then, nor is there any thing now, should they be so disposed, to prevent it. They wisely stopped, however, at a certain point, extending the incorporation to that point, making the national government, thus far, a consolidated government, and preserving the state governments, without that limit, perfectly sovereign aud independent of the national government. Had the people of the several states incorporated themselves into one community, they must have remained such; their constitution becoming then, like the constitutions of the several states, incapable of change, until altered by the will of the majority. In the institution of a state government by the citizens of a state, a compact is formed, to which all and every citizen are equal parties. They are also the sole parties, and may amend it at pleasure. In the institution of the government of the United States, by the citizens of every state, a compact was formed between the whole American people, which has the same force, and partakes of all the qualities, to the extent of its powers, as a compact between the citizens of a state, in the formation of their own constitution. It cannot be altered, except by those who formed it, or in the mode prescribed by the parties to the compact itself.

"This constitution was adopted for the purpose of remedying all the defects of the confederation; and in this, it has succeeded, beyond any calculation, that could have been formed of any human institution. By binding the states together, the constitution performs the great office of the confederation, but it is in that sense only, that it has any of the properties of that compact, and in that it is more effectual, to the purposè, as it holds them together by a much stronger bond, and in all other respects, in which the confederation failed, the constitution has been blessed with complete success. The confederation was a compact between separate and independent states; the execution of whose articles, in the powers which operated internally, depended on the state governments. But the great office of the constitution, by incorporating the people of the several states, to the extent of its powers, into one community, and enabling it to act directly on the people, was to annul the powers of the state governments to that extent, except in cases where they were concurrent, and to preclude their agency in giving effect to those of the general government. The government of the United States relies on its own means for the execution of its powers, as the state governments do for

cates that opinion, holds as the appropriate deduction from it."Being thus derived (says he) from the same source, as the constitutions of the states, it has, within each state, the same authority, as the constitution of the state; and is as much a constitution within the strict sense of the term, within its prescribed sphere, as the constitutions of the states are, within their respective spheres. But with this obvious and essential difference, that being a compact among the states in their highest sovereign capacity, and constituting the people thereof one people for certain purposes, it cannot be altered, or annulled at the will of the states individually, as the constitution of a state may be at its individual will.” 1

the execution of theirs; both governments having a common origin, or sovereign, the people; the state governments, the people of each state, the national government, the people of every state; and being amenable to the power, which created it. It is by executing its functions as a government, thus originating and thus acting, that the constitution of the United States holds the states together, and performs the office of a league. It is owing to the nature of its powers, and the high source, from whence they are derived, the people, that it performs that office better than the confederation, or any league, which ever existed, being a compact, which the state governments did not form, to which they are not parties, and which executes its own powers independently of them."

1 Mr. Madison's Letter, North American Review, Oct. 1830, p. 538.Mr. Paterson (afterwards Mr. Justice Paterson) in the convention, which framed the constitution, held the doctrine, that under the confederation no state had a right to withdraw from the Union without the consent of all. "The confederation (said he) is in the nature of a compact; and can any state, unless by the consent of the whole, either in politics or law, withdraw their powers? Let it be said by Pennsylvania and the other large states, that they, for the sake of peace, assented to the confederation; can she now resume her original right without the consent of the donec?”* Mr. Dane unequivocally holds the same language in respect to the constitution. "It is clear (says he) the people of any one state alone never can take, or withdraw power from the United States, which was granted to it by all, as the people of all the states can do rightfully in a justifiable revolution, or as the people can do in the manner their constitution prescribes." Dane's App. § 10, p. 21.

VOL. I.

Yates's Debates, 4 Elliot's Debates, 75.
43

§ 367. The other branch of the proposition, we have been considering, is, that it is not only a compact between the several states, and the people thereof, but also a compact between the states and the federal government; and e converso between the federal government, and the several states, and every citizen of the United States.1 This seems to be a doctrine far more involved, and extraordinary, and incomprehensible, than any part of the preceding. The difficulties have not escaped the observation of those, by whom it has been advanced. "Although (says the learned commentator) the federal government can, in no possible view, be considered as a party to a compact made anterior to its existence; yet, as the creature of that compact, it must be bound by it to its creators, the several states in the Union, and the citizens thereof."2 If by this, no more were meant than to state, that the federal government cannot lawfully exercise any powers, except those conferred on it by the constitution, its truth could not admit of dispute. But it is plain, that something more was in the author's mind. At the same time, that he admits, that the federal government could not be a party to the compact of the constitution "in any possible view," he still seems to insist upon it, as a compact, by which the federal government is bound to the several states, and to every citizen; that is, that it has entered into a contract with them for the due execution of its duties.

The ordinance of 1787, for the government of the western territory, contains (as we have seen) certain articles declared to be "articles of compact;" but they are also declared to "remain for ever unalterable, except by common consent." So, that there may be a compact, and yet by the stipulations neither party may be at liberty to withdraw from it, or absolve itself from its obligations. Ante, p. 269.

1 1 Tucker's Black. Comm. 169, 170.

21 Tucker's Black. Comm. 170.

368. And a doctrine of a like nature, viz. that the federal government is a party to the compact, seems to have been gravely entertained on other solemn occasions.1 The difficulty of maintaining it, however, seems absolutely insuperable. The federal government is the result of the constitution, or (if the phrase is deemed by any person more appropriate) the creature o the compact. How, then, can it be a party to that compact, to which it owes its own existence? How can

it be said, that it has entered into a contract, when at the time it had no capacity to contract; and was not even in esse? If any provision was made for the general government's becoming a party, and entering into a compact, after it was brought into existence, where is that provision to be found? It is not to be found in the constitution itself. Are we at liberty to imply such a provision, attaching to no power given in the constitution? This would be to push the doctrine of implication to an extent truly alarming; to draw inferences, not from what is, but from what is not, stated in the instrument. But, if any such implication could exist, when did the general government signify its assent to become such a party? When did the people authorize it to do so? 3 Could the government do so, without the express authority of the people? These are questions, which are more easily asked, than answered.

§ 369. In short, the difficulties attendant upon all the various theories under consideration, which treat the constitution of the United States, as a compact, either between the several states, or between the people

1 Debate in the Senate, in 1830, on Mr. Foot's Resolution, 4 Elliot's Debates, 315 to 331.

2 Webster's Speeches, 429; 4 Elliot's Debates, 324.

3 Dane's App. § 32, p. 41; Id. § 38, p. 46.