debates, and has thus thrown much light on the questions that were agita ted; and may be considered for that purpose, as of the highest authority. In his minutes of the debate on that day, he observes, "this last resolve had its difficulties; the term supreme required explanation. It was asked whether it was intended to annihilate the State Governments? It was answered only so far as the powers intended to be granted to the new Go-vernment should clash with the States, when the latter should yield."-- Yates" Minutes, p. 50. It was thus decided that the articles of confederation should be laid aside, and the principle of a compact among the States as sovereignties abandoned. Accordingly we find that, on the 6th June following, when the fourth resolution offered by Governor Randolph was under consideration, which provided that the members of the first branch of the National Legislature should be elected by the people, a motion having been made to strike out the word "people," and substitute the word "Legislatures" of the several States, the motion was lost by a vote of eight States to three. In the debate on that point, Mr. Madison is reported by Mr. Yates, to have observed that, when we agreed to the first resolve of having a National Government, consisting of a Supreme Executive, Judicial and Legislative power, it was then intended.to operate to the exclusion of a Federal Government, and the more extensive we made the basis, the greater probability of duration, happiness, and order."-Yates' 'Minutes, p. 63.

The first resolution was afterwards modified so as to read thus: "Re ́solved, That the Government of the United States ought to consist of a Supreme Legislative, Judiciary, and Executive." The reason for which is stated by Mr. Luther Martin, one of the delegates from Maryland, and a most determined opponent of the proposed system at the time, to have been that they were afraid that the word national might tend to alarm.--Yates' Minutes, p. 22.

The principle was thus, therefore, clearly established, and remained unchanged, that the new government was not to be placed on the footing of a compact among the States as sovereigns; but was to emanate from the people, and be established by their authority. On the twenty-third of July, the resolution thus modified, was, together with the others which had been elaborated in the debate that had been carried on in the Committee of the Whole, referred to a committee of five for the purpose of reporting a constitution. It is evident that the committee appointed for that purpose, were bound, in draughting the instrument, to preserve that fundamental principle. Accordingly, on the 6th of August, the committee reported the draught of a constitution, the preamble to which began in these words: "We, the people of the States of New Hampshire, Massachusetts, &c., do ordain and establish the following constitution for the government of ourselves and our posterity."-Elliot's Debates, vol. 4, p. 116. The principle was here distinctly set forth, but as it might have afforded some room for cavil, and it was determined that there should not be a loop to hang a doubt upon, phraseology was changed, and that of the present constitution adopted, "We the people of the United States," &c. If it is possible for human language or for human conduct to express the intentions of the mind, nothing can be clearer than the intention of the General Convention on this point. If regard then be had to the instrument itself, it is, and it purports to be, a constitution of government established by the people of the United States. For this purpose it was not at all necessary that they should be

the

assembled in one body, in one place, or by one authority. It was sufficient for them to assemble in their respective States, at their usual places of election, and under the usual authority. When once assembled, and they proceeded to ratify the instrument, it became to all intents and purposes their act. Nor does it at all affect the question that it was provided, that the ratification of a certain number of the States should be necessary for its establishment. That was a mere condition which amounted to no more than a declaration, that the experiment was not worth the trial, unless such a portion of the people should concur. So far as this particular subject is concerned, the term States is a mere description of the people by classes, and is of no more moment in the argument than if the provision had been, that it should not take effect unless ratified by two millions of people, or by two hundred and forty counties, or one hundred districts. The provision was a condition precedent, which ceased to be of importance the moment it was fulfilled.

The tenth amendment of the constitution which provides that "the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people," illustrates and confirms the view here taken of the character of the instrument, and the source of its authority. But if, in addition to this, the frame of government be considered which deprives the States of almost all the essential rights of sovereignty, and makes them amenable to the tribunals of the United States' Government, whose decisions are conclusive in relation to all controversies arising under the constitution and the laws of the United States, it becomes a matter of surprise that any doubt should have been expressed on the subject.

It thus appears that the constitution is not a treaty or compact between sovereign States, and it remains to show that such was the opinion of cotemporaneous writers. Reference has already been made to the work of Mr. Yates, who was a member of the Convention from New York, and whose minutes of the debates are of the highest degree of authenticity, and which, in the passage already cited, as well as in others, confirms the position taken by your committee. In the debate on the 29th June, the first clause of the seventh proposition being under consideration, which respected the suffrage of each State in the first branch of the Legislature, Mr. Madison, who is so much relied upon by the Carolina Convention as an authority, in the celebrated resolutions of 1798, expressed himself as follows, as reported by Mr. Yates: "Some gentlemen are afraid that the plan is not sufficiently national, while others apprehend that it is too much so. If this point of representation was once well fixed, we would come nearer to one another in sentiment. The necessity would then be discovered of circumscribing more effectually the State Governments, and enlarging the bounds of the General Government. Some contend that States are sovereign, when, in fact, they are only political societies. There is a gradation of power in all societies, from the lowest corporation to the highest sovereign. The States never possessed the essential rights of sovereignty. These were always vested in Congress. Their voting as States in Congress is no evidence of sovereignty. The State of Maryland voted by counties-did this make the counties sovereign? The States at present are only great corporations, having the power of making by-laws, and these are effectual only, if they are not contradictory, to the general confederation. The States ought to be placed under the control of the General Government.

If the power is not immediately derived from the people in proportion to their numbers, we may make a paper confederacy, but that will be all. We know the effects of the old confederation, and, without a general government, this will be like the former."--Yates' Minutes, page 114.

In the debate on the 5th June, the last or 15th proposition of Governor Randolph being under consideration, which provided that the work of the Convention should be submitted to assemblies of representatives to be chosen by the people expressly for that purpose; Mr. Yates reports that "Mr. Madison endeavored to enforce the necessity of this resolve, because the new national constitution ought to have the highest source of authority, at least paramount to the powers of the respective constitutions of the States; points out the mischiefs that had arisen in the old confederation, which depends upon no higher authority than the confirmation of an ordinary act of a Legislature "-Yates' Minutes, p. 62.

Mr. Luther Martin, who was a delegate from the State of Maryland in the General Convention, and violently opposed to the new system at the time, in his report to the Legislature of Marylandeon the subject of the proceedings of the Convention, thus details the arguments used by himself and his friends. "It was urged that the Government we were forming was not in reality a federal, but à national Government, not founded on the principles of the preservation, but the abolition or consolidation of all State Governments. That we appeared totally to have forgot the business for which we were sent, and the situation of the country for which we were preparing our system. That we had not been sent to form a government over the inhabitants, of America, considered as individuals; that, as individuals, they were all subject to their respective State Governments, which Governments would still remain, though the Federal Government should be dissolved. That the system of government we were entrusted to prepare was a government over these thirteen States; but that, in our proceedings, we adopted principles which would be right and proper only on the supposition that there were no State Governments at all, but that all the inhabitants of this extensive continent were, in their individual capacity, without government, and in a state of nature. That, accordingly, the system proposes the Legislature to consist of two branches, the one to be drawn from the people at large, immediately in their individual capacity; the other to be chosen in a more select manner, as a check upon the first. It is, in its very introduction, declared to be a compact between the people of the United States as individuals; and it is to be ratified by the people at large, in their capacity as individuals; all which it was said would be quite right and proper, if there were no State Governments; if all the people of this continent were in a state of nature, and we were forming one national Government for them as individuals; and is nearly the same as was done in most of the States, when they formed their Governments over the people who compose them."-Yates' Minutes, pages 19, 20. Notwithstanding these arguments, the constitution was prepared and adopted on the principles which were thus opposed; and we have here the commentary of one of the ablest lawyers that this country ever produced, who was himself a member of the Convention, and opposed to the system, upon that yery instrument; and putting it beyond all doubt and controversy that it was the design of the Convention to abandon the principle of a compact among the States as sovereigns, and substitute for it that of a Government established by the people. The same

view of the subject is presented in the Federalist, a work which was written at the time for the express purpose of explaining and recommending the new Constitution, and which was the joint production of three of the ablest men of the day, and has been regarded and relied upon, both in and out of Congress, and even in the courts of justice, as presenting a most able, authentic, and correct exposition of its principles. The conclusion of the twenty second number, in which some of the evils of the old confederation are pointed out, is as follows: "It has not a little contributed to the infirmities of the existing federal system, that it never had a ratification by the people. Resting on no better foundation than the consent of the several Legislatures, it has been exposed to frequent and intricate questions concerning the validity of its powers; and has, in some instances, given birth to the enormous doctrine of a right of legislative repeal. Owing its ratification to the law of a State, it has been contended that the same authority might repeal the law by which it was ratified. However gross a heresy it may be to maintain that a party to a compact has a right to revoke that compact, the doctrine itself has had respectable advocates. The possibility of a question of this nature, proves the necessity of laying the foundations of our National Government deeper than in the mere sanction of delegated authority. The fabric of American empire ought to rest on the solid basis of the consent of the people. The streams of national power ought to flow immediately from that pure original fountain of all legitimate authority." It is unnecessary to multiply quotations. The question is not under what name the Government established by the constitution would be classed by political writers; whether it would be called a federal government or a national government, or a compound of the two; but simply from whom does it derive its powers? whether from the States as sovereigns, or from the people? It thus appears from the constitution itself, from the Journal of the Convention, from the debates on its proceedings, from the reports of its enemies, and from the arguments of its friends, that the principle on which it was founded was, that it was to be a government emanating from, and established by the people. If any thing more were wanting to make assurance doubly sure, the ratification by the State of Virginia where more opposition was experienced than in any other State, and more debate was had on the subject-the solemn act of ratification by that State recognizes the fact in so many words. It is as follows:

"We, the delegates of the people of Virginia, &c. do, in the name and in behalf of the people of Virginia, declare and make known, that the powers granted under the Constitution, being derived from the people of the United States, may be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power not granted thereby remains with them, and at their will, &c "Elliot's Debates, vol. iv. p.

215.

It is thus established beyond a doubt, whether we regard the instrument itself, or its cotemporaneous history, that the constitution is a form of government established by the people, and not a compact or treaty among the States. If this be true, then the whole system of nullification toppies into ruin.

The principle on which that system is built, is, that the constitution is a treaty between sovereign States and the General Government-an agency for them. The moment this foundation is destroyed, the whole system of

reasoning falls with it. If the General Government be one, established by the people of the United States, then they owe it allegiance, and may be guilty of treason towards it. Its laws are supreme, and no portion of the people can abrogate them. The State Governments are component, but subordinate parts of the system. They are as necessary and useful in their sphere as the General Government, but that portion of the people of the United States who constitute a particular State, can have no more right to .nullify or suspend a law of the United States than a smaller portion of them, as a county of a particular State, or than any individual. In other words, the union of any number, whether great or small, can give no greater or other right than that which belongs to each individual, as a constitutional measure. It is to be recollected that the ground taken by the nullification party is, that nullification is a right consistent with the constitution, and peaceable in its nature. In order to sustain that position, it was essential to show that the constitution is a treaty between sovereign States, and that, in such case, there could be no common arbiter, but that each was entitled to construe the instrument for itself, and was bound only by moral obligation to observe its stipulations, and was therefore the judge of their infraction; and of the measure and mode of redress. But so far from this being true, it has been shown that the constitution is a form of government established by the people of the United States; and having provided a tribunal for the settlement of all controversies arising under its provisions, or the laws of the United States, it necessarily follows that no other mode of decision can be resorted to as consonant with its principles.

If the ground had been taken that it was a revolutionary measure, and justified on the great principle of self preservation, it would have had the merit of being intelligible; and, if true, would have enlisted the sympathies of other States, and indeed of other nations. In such a case, it would be an appeal to arms, and the legal consequences of such a step would have to be met. The case would then be one of an insurrection of a portion of the people against the Government, in consequence of alleged oppression. But it was clearly seen that the real state of the case would not justify such a measure. It was clearly seen that neither the rest of the people of the United States, nor any portion of the world could be made to believe that, in the midst of so much general happiness and prosperity, in a time of profound peace, with an overflowing treasury, and under such a Government as that of the United States, such a case of oppression could be made out as would justify rebellion. It was therefore necessary to resort to this doctrine of nullification for the purpose of disguising the real nature of the measure, and to give to a contemplated resistance the air of constitutional right. The act of nullification is, itself, a nullity, and the consequences are treason.

The State Governments, it is true, are sovereign for some purposes, but have, by the constitution of the United States, been stripped of most of the essential attributes of sovereignty, such as the rights to declare war, make peace, enter into treaties and alliances, coin money, &c. It is a matter of no sort of importance which instrument happens to precede the other in point of time-whether the constitution of the State or the constitution of the United States. The latter instrument having been declared the supreme law, and being the work of the same people, necessarily controls and abridges any sovereign power vested in the State Governments under the State constitutions. It is needless to pursue the subject further. It is apparent that the State of South Carolina has no such right as she claims under the