compact, the creature of the compact, not one of the parties to it. Yet the argument, as the gentleman has now stated it, makes the government itself one of its own creators. It makes it a party to that compact to which it owes its own existence. "For the purpose of erecting the Constitution on the basis of a compact, the gentleman considers the States as parties to that compact; but as soon as his compact is made, then he chooses to consider the general government, which is the offspring of that compact, not its offspring, but one of its parties; and so, being a party, has not the power of judging on the terms of compact. "If the whole of the gentlemen's main proposition were conceded to him—that is to say, if I admit, for the sake of the argument, that the Constitution is a compact between States the inferences which he draws from that proposition are warranted by no just reason; because, if the Constitution be a compact between States, still that Constitution, or that compact, has established a government with certain powers; and whether it be one of those powers, that it shall construe and interpret for itself the terms of the compact, in doubtful cases, can only be decided by looking to the compact, and inquiring what provisions it contains on this point. Without any inconsistency with natural reason, the government, even thus created, might be trusted with this power of construction. The extent of its powers, therefore, must still be sought for in the instrument itself." The whole phraseology of the Constitution is in conflict with the one theory as much as with the other. In contradistinction with the preceding instrument of union, it does not call itself a 7 Webster's Reply to Hayne, Elliot's Debates 2d ed., vol. iv, pp. 516517. This point is yielded by the acute and learned author of The Republic of Republics, 4th ed., pp. 259260: "The Fourteenth Party to the Compact was, according to Robert Y. Hayne and Judge J. S. Black, the government, which could not have had any existence till long after the eleven states had ratified, established, and finished said compact." After quoting them : "Other eminent men make the same mistake, so that the confusion of ideas on this subject is general. It is only necessary to say that the compact ex isted and was complete, through those ratifications, declared in itself to be sufficient for the establishment of it, many months before the general government existed. After the collective States, in the Congress of themselves, had recognized the finished compact, and advised the States to act under it, by electing their subjects as its functionaries; after the several States had elected their quotas, according to the express terms; and after these electees had convened and organized under the said pact; then and not till then did or could the general government exist. It is then absurd to call the government a party." league, nor a compact, nor articles of confederation; but a Constitution,10 which is ordained and established," which vests powers in a government; 12 and which shall be the supreme law of the land, by which the judges in every State shall be bound, anything in the Constitution or laws of any State to the contrary notwithstanding.13 The Constitution is founded upon compact, but is not itself a compact.14 8 Articles of Confederation, III. 9 Preamble and concluding clause of Articles of Confederation. 10 See Webster's Speech in the Senate, Feb. 16, 1833, against Calhoun's Resolutions; Niles's Register, xliii, Appendix, p. 170. 11 Preamble. 12 Article I, § 8, concluding clause. 13 Ibid., Article VI. 14" Whether the Constitution be a compact between States in their sovereign capacities, is a question which must be mainly argued from what is contained in the instrument itself. We all agree that it is an instrument which has in some way been clothed with power. We all admit that it speaks with authority. The first question then is, what does it say of itself? What does it purport to be? Does it style itself a League, Confederacy, or Compact between sovereign States? It is to be remembered, sir, that the Constitution began to speak only after its adoption. Until it was ratified by nine States, it was but a proposal, the mere draught of an instrument. It was like a deed drawn, but not executed. The Convention had framed it; sent it to Congress, then sitting under the Confederation; Congress had transmitted it to the State legislatures; and by these last it was laid before conventions of the people in the several States. All this while it was inoperative paper. It had received no stamp of authority, no sanction; it spoke no language. But when ratified by the people in their respective conventions, then it had a voice, and spoke authentically. Every word in it had then received the sanction of the popular will, and was to be received as the expression of that will. What the Constitution says of itself, therefore, is as conclusive as what it says on any other point. Does it call itself a Compact'? Certainly not. It used the word compact but once, and that is when it declares that the States shall enter into no compact. Does it call itself a League', a 'Confederacy', a 'subsisting Treaty between the States'? Certainly not. There is not a particle of such language in all its pages. itself a Constitution. stitution? But it declares What is a ConCertainly not a league, compact, or confederacy, but a fundamental law. That fundamental regulation which determines the manner in which the public authority is to be executed, is what forms the constitution of a State. Those primary rules which concern the body itself, and the very being of the political society, the form of government, and the manner in which power is to be exercised,―all, in a word, which form together the constitution of a State, these are the fundamental laws. This, sir, is the language of the public writers. But do we need to be informed, in this country, what a constitution is? Is it not an idea perfectly familiar, definite, and well settled? We are at no loss to understand what is meant by the Constitution of one of the States; and the Constitution of the United States § 17. Proceedings in Federal Convention as to the Determination of the Form of the New Government. The proceedings in the Federal Convention show that it was intended to create a national government. The resolution of speaks of itself as being an instrument of the same nature. It says, this Constitution shall be the law of the land, any thing in any State Constitution, to the contrary, notwithstanding. And it speaks of itself, too, in plain contradistinction from a confederation; for it says that all debts contracted, and all engagements entered into, by the United States, shall be as valid under this Constitution as under the Confederation. It does not say, as valid under this Compact, or this League, or this Confederation, as under the former Confederation, but as valid under this Constitution. "This, then, sir, is declared to be a Constitution. A Constitution is the fundamental law of the State; and this is expressly declared to be the supreme law. It is as if the people had said, 'We prescribe this fundamental law', or 'the supreme law,' for they do say that they establish this Constitution, and that it shall be the supreme law. They say that they ordain and establish it. Now, sir, what is the common application of these words? We do not speak of ordaining leagues and compacts. If this was intended to be a compact or league, and the States to be parties to it, why was it not so said? Why is there found no one expression, in the whole instrument, indicating such intent? The old Confederation was expressly called a league; and into this league it was declared that the States, as States, severally entered. Why was not similar language used in the Constitution, if a similar intention had existed? Why was it not said, the States enter into this new league,' 'the States form this new confederation,' or 'the States agree to this new compact'? Or why was it not said, in the language of the gentleman's resolution, that the people of the several States acceded to this compact in their sovereign capacities? What reason is there for supposing that the framers of the Constitution rejected expressions appropriate to their own meaning, and adopted others wholly at war with that meaning? "Again, sir, the Constitution speaks of that political system which is established as the Government of the United States'. Is it not doing a strange violence to language to call a league or a compact between sovereign powers a government? The gov ernment of a State is that organization in which the political power resides. It is the political being created by the Constitution or fundamental law. The broad and clear difference between a government and a league or compact is, that a government is a body politic; it has a will of its own; and it possesses powers and faculties to execute its own purposes. Every compact looks to some power to enforce its stipulations. Even in a compact between sovereign communities, there always exists this ultimate reference to a power to insure its execution; although, in such case, this power is but the force of one party against the force of another; that is to say, the power of war. But a gorernment executes its decisions by its own supreme authority. Its use of force in compelling obedience to its Congress which recommended the Convention recited as the reason for the same: "Such Convention appearing to be the most suitable means of establishing in these States a firm national government.' own enactments is not war. It contemplates no opposing party having a right of resistance. It rests on its power to enforce its own will; and when it ceases to possess this power, it is no longer a government." Daniel Webster's Speech of Feb. 16, 1833, in the Senate, in opposition to Calhoun's Resolutions of Jan. 22, 1833. Niles's Register, vol. xliii, Appendix, p. 170; Webster's Speeches, 8th ed., vol. ii, pp. 174-176. See Calhoun's Reply of Feb. 26, 1833, Niles's Register, vol. xliii, p. 259; Calhoun's Speeches pp. 98-122, quoted in Stephens' Constitutional View of the Late War between the States, vol. i, pp. 343–387. "I do not agree that the Constitution is a compact between States in their sovereign capacities. I do not agree that, in strictness of language, it is a compact at all. But I do agree that it is founded on consent or agreement, or on compact, if the gentleman prefers that word, and means no more by it than voluntary consent or agreement. The Constitution, sir, is not a contract, but the result of a contract; meaning by contract no more than assent. Founded on consent, it is a government proper. Adopted by the agreement of the people of the United States, when adopted, it has become a Constitution. The people have agreed to make a Constitution; but, when made, that Constitution becomes what its name imports. It is no longer a mere agreement. Our laws, sir, have their foundation in the agreement or consent of the two houses of Congress. We say, habitually, that one house proposes a bill, 1 and the other agrees to it; but the result of this agreement is not a compact, but a law. The law, the statute, is not the agreement, but something created by the agreement; and something which, when created, has a new character, and acts by its own authority. So the Constitution of the United States, founded in or on the consent of the people, may be said to rest on compact or consent; but it is not itself the compact, but its result. When the people agree to erect a government, and actually erect it, the thing is done, and the agreement is at an end. The compact is executed, and the end designated by it attained. Henceforth, the fruit of the agreement exists, but the agreement itself is merged on its own accomplishment, since there can be no longer a subsisting agreement or compact to form a constitution or government, after that constitution or government has been actually formed and established." Daniel Webster's Speech of Feb. 16, 1833, in the Senate, in opposition to Calhoun's Resolutions of Jan. 22, 1833. Niles's Register, vol. xliii, Appendix, p. 170; Webster's Speeches, 8th ed., vol. ii, pp. 176-177. See Calhoun's Reply of Feb. 26, 1833, Niles's Register, vol. xliii, 259; Calhoun's Speeches, pp. 98-122, quoted in Stephens' Constitutional View of the Late War between the States, vol. i, pp. 343-387. So, marriage is founded upon contract, but when solemnized is a status, which is something more than a contract. § 17. 1 Elliot's Debates, 2d ed., vol. i, p. 120. At the opening of the Federal Convention, Governor Randolph, on behalf of the delegates from Virginia, presented a series of resolutions as the foundation of their proceedings. The first was: "Resolved, that the Articles of Confederation ought to be so corrected and enlarged as to accomplish the objects proposed by their institution; namely, common defence, security of liberty, and general welfare.' "2 The resolutions throughout referred to a "national legislature," "a national executive," and "a national judiciary." Charles Pinckney, of Virginia, also laid before the House "the draft of a Federal Government, which he had prepared, to be agreed upon between the free and independent States of America." It was entitled: "Plan of a Federal Constitution." The copy of this latter document, which is now preserved, presents a singular likeness to the Constitution as finally adopted. It is believed, however, to be a corrected copy, which contains many alterations from the original, consisting of propositions which were subsequently adopted by the Convention.* 2 Madison Papers, Elliot's Debates, 2d ed., vol. v, p. 127; ibid., p. 129. 3 Ibid., pp. 127-128. 4 "Note of Mr. Madison to the Plan of Charles Pinckney, May 29, 1787:"The length of the document laid before the Convention, and other circumstances, having prevented the taking of a copy at the time, that which is inserted in the debates was taken from the paper furnished to the secretary of State, and contained in the Journal of the Convention, published in 1819; which, it being taken for granted that it was a true copy, was not then examined. The coincidence in several instances between that and the Constitution, as adopted, having attracted the notice of others, was at length suggested to mine. On comparing the paper with the Constitution in its final form, or in some of its stages, and with the propositions and speeches of Mr. Pinckney in the Convention, it was apparent that considerable error had crept into the paper, occasioned possibly by the loss of the document laid before the Convention (neither that nor the resolution offered by Mr. Patterson being among the preserved papers), and by a consequent resort for a copy to the rough draught, in which erasures and interlineations following what passed in the Convention, might be confounded, in part at least, with the original text, and, after a lapse of more than thirty years, confounded also in the memory of the author. There is in the paper a similarity in some cases, and an identity in others, with details, expressions, and definitions, the results of critical discussions and modification in the Convention, that could not have been anticipated. Examples may be noticed in Article VIII of the paper; which is remarkable also for the circumstance, that, whilst it |