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.

The real fourteenth party -- if any — is, as has been shown heretofore, the association called "the united states," to which all the powers of the constitution were delegated, as Amendment X. proves. [See supra, 193.]

Article I. of the original form of the constitution, as unanimously approved by the convention of 1787, corroborates this view fully: "The style of the government shall be 'the united states of America.'”

The united republics themselves - and not their agency were to be "the government." The people, as organized, must govern themselves. Otherwise they are not republican! [See V. Ell. Deb. 377.]

NULLIFICATION.

The first remarkable appearance of this error

for such I assume

it to be- is in the Kentucky resolutions of 1799, said to have been written, or, at least inspired, by Mr. Jefferson. [See IV. Ell. Deb. 545.] The Virginia resolutions of 1798 are also charged — but denied to contain the doctrine.

The next most conspicuous assertion of the claim, was that of South Carolina, and her leading statesmen, in 1830-1833.

As has been shown, the state has a sovereign mind and will, of which the constitution and the resultant government are alike the offspring; while, in establishing such constitution, and working the government through agents, the said state is simply exercising its right of government, i. e. sovereignty, in a purely functional way. To say it is the sovereign law-making power, is equal to saying, it is the sovereign law-repealing power. The states elect all government, and delegate all governmental authority.

But, a state or its convention has no right to withdraw some, and leave the rest of the powers; or obstruct the execution of a part; or annul a law, while adhering to the union; for the constitution, being a compact, is not to be partly suspended, and partly executed, by one of the parties. If, however, a state attempt it, only a casus belli is inade, for coercing the will of a state is inconsistent with the voluntariness of the states' union, and their action in it; and, of course, justifies the return of blows. The fathers characterized such coercion

correctly, as war.

Hence, the position of the Jackson administration is as bad as that of the nullifiers; and its proclamation was both petty and fogging sophistry - a state paper alike unworthy of the subject and the author. The proclamation of force was not actually against an unlawful combination, so much as against the sovereign will of an equal commonwealth; and it was treasonable in its nature!

A Cardinal Error and a Plain Distinction. South Carolina made a great mistake in attempting to nullify the federal tariff laws; and it raised a fatal prejudice against secession, or the ultimate peaceful right of self-preservation, which of course includes discretion as to occasion, time, and manner. South Carolina should have protested, and, if unheeded, withdrawn. Her false position gave Webster his great vantage-ground, of which he availed himself most adroitly yoking "nullification" and "secession" together, and driving both to

ruin.

Said he "In the constitution it is the people who speak, and not the states; . . . it does not exact from states any plighted public faith to maintain it; . . it makes its own preservation depend on individual duty and obligation." He then proceeds to say that state legislators, judges, and executive officers, like federal functionaries, are bound by oath to support the constitution [Art. VI., § 3] and hence are compelled to elect senators, and provide for the election of representatives and president. The functions of states in the union, he argues, are not voluntary; they have no discretion; "the people" have bound them inseparably to the constitution, and under the controlling power of the federal government. Their sovereign will, and right of self-preservation, are alienated and gone forever. Hence (having made his premises, his conclusion is easy), both "nullification" and "secession" are unconstitutional and inadmissible. But Mr. Webster finds it convenient to ignore the most important fact: that members of a state convention are not mentioned, and are not under the obligation of taking such oath (expressio unius est exclusio alterius). Why are not conventionists required to take the oath? Because, immediately representing the sovereignty-they MADE said constitution (including this clause) and are of necessity above it. The will that creates, remains above its creation. The will that delegates powers, owns them absolutely; and whosoever else holds them, does it as agent or trustee. States did not intend to subordinate themselves. They did not place themselves under the jurisdiction of the federal government, as every line of the record shows! Not only so, but they provided against even judicial federal control; and, moreover, they spurned the idea of federal coercion of states, from their vention of states," while, at the same time, they gave to the govern

con

mental agency, or commission for federal affairs, just such relations to, and control over, their citizens, as their state governments had — and nobody claims that these have sovereignty over the states!

-

When, then, the organized people the state-call a convention, it is the sovereignty that acts: it is uncontrollable above all constitutions, and in no degree bound by them, for it is the power that alike constitutes and dissolves, makes and unmakes them. Massachusetts conclusively proves this in her constitution, as heretofore quoted: "The people of this Commonwealth. . . have an incontestable, unalienable and INDEFEASIBLE RIGHT to institute government, and to... TOTALLY CHANGE the same when their safety and happiness require it.” This constitution, which is full of unqualified state sovereignty, is said to have been written by John Adams, the ancestor of the present conspicuous persons of that name in Massachusetts.

The Plain Distinction.

- Now we can see, quite plainly, the dis

tinction between nullification and secession.

Nullification remains in the union, enjoying its benefits, but only obeying such part of its laws as it pleases; and sworn functionaries presumably violate their oaths.

66

Secession withdraws from the union of states, revoking all powers delegated" thereto; and state officials are relieved of all federal obligations by the supreme power that imposed them.

I think now that it is conclusively proved, by the self-characterization, and the action of the states in the union, that each original one, being thoroughly organized and sovereign, did, by virtue of its sovereignty, through its convention, federate, "delegating" a part of its governing power to the united states, who, by their agency, constituted in the act of federation, govern for their common defence and general welfare. And each of these great commonwealths passed into the union, exactly as she pre-existed, in her full integrity, with all her faculties, possessed of plenary authority, and acting functionally, in all matters of government, with uncontrolled will. And ever since its sovereignty came by revolution, as well before as since the present federal constitution was formed, it has, at discretion, “delegated” a supplement of governing authority to an agency for home affairs— this also being done by its convention.

Unquestionably, then, the nullifying or suspending of the laws of the federation by a party, while staying in, and enjoying the benefit of the association, is inconsistent with the "compact and plighted faith," upon which Mr. Webster, as well as every other candid publicist, bases the 99 66 ARTICLES OF UNION BETWEEN THE STATES" (as the federal convention unanimously characterized them), and the laws passed in pursuance thereof.

"THE LOST PRINCIPLE."

If the states ratified the constitution, each for herself, they must be "the parties to the compact" [Hamilton, 85 Fed.], and the only way to show that sections, or groups of states, were also parties, is to show that they exercised their wills, as such, in becoming so. Among the misleading and confusing expositions to be noticed, are two, the first by "Barbarossa" (Robert E. Scott, of Virginia), in 1860, under the above title; and the other by Webster and Curtis, to rid the former of these two of an inconsistency in his speech of 1833.

"Barbarossa's" theory is, that in the convention of 1787, a warm controversy arose between the larger and the smaller, and between the northern and southern states, which was settled by a compact, establishing sectional equilibrium. The theory will be found in the appendix hereof, in the author's own words. [See Appendix F.] Among the motives and understandings, this may have had place; but it was not expressed and consecrated among those institutional balances and checks that the sworn statesman or the expositor must take cognizance of, and to which he must confine himself. "Barbarossa' marvels at Madison not mentioning this compact of equilibrium, in the constitutional convention of Virginia, in 1829, of which he (Madison) was a member. I think the duty of stating, then and there, so important a part of our system -if part it had been considered-would not have been shirked. But, I opine, it was no part. The constitution was written, complete and palpable, and contained and it contains now no hint of the momentous compact, which " Barbarossa contends belongs to it, and "makes the federal system even more complex than it has been generally supposed to be."

In conclusion of this subject, I submit that the idea of compact is inadmissible, where it is not evidenced by the words and figures of the instrument, is not promulgated as a part of the supreme law, is never mentioned in history, or contemporary annals, but lies occult and unknown for forty years in a secret journal, which might never have seen the light. I should incline to a more positive opinion, but for the fact that Professor Bledsoe, who was always thorough in research, and alike comprehensive and profound in reflection, thought the matter involved a practical and binding compact, of which he promised to treat, in a history of the late war, which he intended to write. [See Southern Review, Jan. 1876.]

Webster and Curtis have the Same Idea. - As Daniel Webster had inveighed against Calhoun's use of the phrase "constitutional compact," and had been himself a habitual user of the phrase, he had

to explain, as did Mr. Curtis, the latter as follows: "He was speaking of a particular clause in the constitution, . . . as founded on a compact between different classes of states." Of course, the mysterious "compact" is far down, and to judge of it, we must do as we do with mummies in the first place, bring them from under the pyramid, and, secondly, unfold them a good deal. But I must pass on, referring to the above remarks on "Barbarossa's " theory, and to page 211, supra. Contemporaneous exposition is valuable, but it must be based on the actual provisions of the constitution.

"THE CONSENT OF THE GOVERNED."

In the Declaration of Independence, Jefferson wrote that to secure the rights of "life, liberty, and the pursuit of happiness," governments are instituted, "deriving their just powers from the consent of the governed." In a republic, of course, will - the collective willis the proper word, consent being included; for Englishmen, Germans, and Russians give consent to government, just as much as Americans do. A clement and gracious king, in doing his own will, always seeks the people's preference or consent; and, in England, the wish of the people is a very influential guide to government. But this does not

answer. Will is wanted.

Our public men and press seem to think that, because the southern states submit, they consent; so that the Declaration is satisfied, and the soul of Jefferson content.

If they be republics, their will—the will of the people the will of the commonwealths must govern.

"THE WILL OF THE MAJORITY RULES."

Is not this phrase of Mr. Jefferson both fallacious and pernicious? I can find no evidence that either he, or any subsequent politician, has deliberated on the subject; and it seems to be one of the numerous honest but loose and misleading phrases, that so infest our politics and confuse our political ideas.

Will is a unit in the state, and it governs, determining itself by its instruments - votes. The majority of voters is never brought together and organized, so as to make a body for a mind and will to dwell and act in, for the purpose and duty of ruling. This simple consideration shows the absurdity of the phrase.

Instead of electees being servants of the electing party, they are exclusively the servants and agents of the commonwealth, to carry out its will. An official swears to support the constitution, i. e. the