§320. It is wholly beside our present purpose to engage in a critical commentary upon the different parts of this exposition. It will be sufficient, for all the practical objects we have in view, to suggest the difficulties of maintaining its leading positions, to expound the objections whch have been urged against them, and to bring into notice those opinions, which rest on a very different basis of principles.

§ 321. 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

p. 17. The original resolution had the word "alone" after "States," which was struck out upon the motion of the original mover, it having been asserted in the debate that the people were parties also, and by some of the speakers that the people were exclusively parties.

The Kentucky resolutions of 1797 (which were drafted by Mr. Jefferson) declare "that to this compact [the federal Constitution] each State acceded as a State, and is an integral party." North American Review, October, 1830, pp. 501, 545. In the resolutions of the senate of South Carolina, in November, 1817, it was declared, "that the Constitution of the United States is a compact between the people of the different States with each other, as separate and independent sovereignties." In November, 1799, the Kentucky legislature passed a resolution, declaring that the Federal States had a right to judge of any infraction of the Constitution, 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. Mr. Madison, in the Virginia Report of 1800, reasserts the right of the States, as parties, to decide upon the unconstitutionality of any measure. Report, pp. 6, 7, 8, 9. The Virginia legislature, in 1829, passed a resolution, declaring that "the Constitution of the United States being a federative compact between sovereign States, in construing which no common arbiter is known, each State has the right to construe the compact for itself." 3 Am. An. Reg.: Local History, 131. Mr. Vice-President Calhoun's letter to Gov. Hamilton of August 28, 1832, contains a very elaborate exposition of this among other doctrines.

Mr. Dane, in his Appendix (§ 3, p. 11), says, that for forty years one great party has received the Constitution as a federative compact among the States, and the other great party, not as such a compact, but, in the main, national and popular. The grave debate in the Senate of the United States, on Mr. Foot's resolution, in the winter of 1830, deserves to be read for its able exposition of the doctrines maintained on each side. Mr. Dane makes frequent references to it in his Appendix. 4 Elliot's Debates, 315 to 330.

withdraw from the confederacy and to dissolve the connection, when such shall be its choice; and may suspend the operations of the federal government, and nullify its acts within its own territorial limits, whenever, in its own opinion, the exigency of the case may require.1 These conclusions may not always be avowed; but they flow naturally from the doctrines which we have under consideration.2 (a) They go to the extent of reducing the government to a mere confederacy during pleasure; and of thus presenting the extraordinary spectacle of a nation existing only at the will of each of its constituent parts.

1 Virginia, in the resolutions of her legislature on the tariff, in February, 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, October, 1830, pp. 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 measures of redress." North American Review, October, 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. The report insists that the States are in the last resort the ultimate judges of the infractions of the Constitution. pp. 6, 7, 8, 9.

2 I do not mean to assert that all those who held these doctrines have adopted the conclusions drawn from them. There are eminent exceptions; and among them the learned commentator on Blackstone's Commentaries seems properly numbered. See 1 Tucker's Black. App. 170, 171, § 8. See the debates in the Senate on Mr. Foot's Resolution in 1830, and Mr. Dane's Appendix, and his Abridgment and Digest, Vol. IX. ch. 187, art. 20, §§ 13 to 22, p. 588, et seq.; North American Review for October, 1830, on the Debates on the Public Lands, pp. 481 to 486, 488 to 528; 4 Elliot's Debates, 315 to 330; Madison's Virginia Report, Jan. 1800, pp. 6, 7, 8, 9; 4 Jefferson's Correspondence, 415; Vice-President Calhoun's letter to Gov. Hamilton, August 28,

1832.

(a) See Mr. Madison's explanation of the Virginia Resolutions, Writings of Madison, IV. 95; North American Review, October, 1830; Randall's Jefferson, II. 451. See also Mr. Madison's elaborate paper on Nullification, in his Writings, IV.

394. Compare as to the right of the States to judge as to infractions of the Constitution, Report of the Hartford Convention of 1814, in Dwight's History thereof, p. 361; Nile's Register, Vol. VII. p. 308.

§ 322. If this be the true interpretation of the instrument, it has wholly failed to express the intentions of its framers, and brings back, or at least may bring back, upon us all the evils of the old confederation, from which we were supposed to have had a safe deliverance. For the power to operate upon individuals, instead of operating merely on States, is of little consequence, though yielded by the Constitution, if that power is to depend for its exercise upon the continual consent of all the members upon every emergency. We have already seen that the framers of the instrument contemplated no such dependence. Even under the confederation it was deemed a gross heresy to maintain that a party to a compact has a right to revoke that compact; and the possibility of a question of this nature was deemed to prove the necessity of laying the foundations of our national government deeper than in the mere sanction of delegated authority.1 "A compact between independent sovereigns, founded on acts of legislative authority, can pretend to no higher validity than a league or treaty between the parties. It is an established doctrine. on the subject of treaties, that all the articles are mutually conditions of each other; that a breach of any one article is a breach of the whole treaty; and that a breach committed by either of the parties absolves the others, and authorizes them, if they please, to pronounce the compact violated and void."2 (a) Con- ! sequences like these, which place the dissolution of the government in the hands of a single State, and enable it at will to

1 The Federalist, No. 22; Id. No. 43: see also Mr. Patterson's opinion in the convention, 4 Elliot's Debates, 74, 75; and Yates's Minutes.

2 The Federalist, No. 43. Mr. Madison in the Virginia Report of January, 1800, asserts (pp. 6, 7) that "the States being parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal above their authority to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide in the last resort such questions as may be of sufficient magnitude to acquire their interposition." Id. pp. 8, 9.

(a) In the Report of the Hartford Convention of 1814, it was declared that "in cases of deliberate, dangerous, and palpable infractions of the Constitution affecting the sovereignty of a State and liberties of the people, it is not only the right but the duty of such a State to interpose its authority for their protection, in the manner best calculated to secure that end.

When emergencies occur which are either beyond the reach of the judicial tribunals, or too pressing to admit of the delay incident to their forms, States which have no common umpire must be their own judges and execute their own decisions." Dwight, Hist. Hartford Convention, 361; Niles's Register, Vol. VII. p. 308.

defeat or suspend the operation of the laws of the Union, are too serious not to require us to scrutinize with the utmost care and caution the principles from which they flow and by which they are attempted to be justified.

§ 323. The word “compact,” like many other important words in our language, is susceptible of different shades of meaning, and may be used in different senses. It is sometimes used merely to express a deliberate and voluntary assent to any act or thing. Thus, it has been said by Dr. South, that "in the beginnings of speech, there was an implicit compact founded upon common consent, that such words, voices, or gestures should be signs, whereby they would express their thoughts; "1 where, it is obvious, that nothing more is meant than a mutual and settled appointment in the use of language. It is also used to express any agreement or contract between parties, by which they are bound and incur legal obligations.2 Thus we say that one person has entered into a compact with another, meaning that the contracting parties have entered into some agreement which is valid in point of law, and includes mutual rights and obligations between them. And it is also used, in an emphatic sense, to denote those agreements and stipulations which are entered into between nations, such as public treaties, conventions, confedera cies, and other solemn acts of national authority. When we speak of a compact in a legal sense, we naturally include in it the notion of distinct contracting parties, having mutual rights and remedies to enforce the obligations arising therefrom. We suppose that each party has an equal and independent capacity to enter into the contract, and has an equal right to judge of its terms, to enforce its obligations, and to insist upon redress for any violation of them. This, in a general sense, is true under

1 Cited in Johnson's Dictionary, verb. Compact. See Heinecc. Elem. Juris, Natur. L. 2, ch. 6, §§ 109 to 112.

2 Pothier distinguishes between a contract and an agreement. An agreement, he says, is the consent of two or more persons to form some engagement, or to rescind or modify an engagement already made. “Duorum vel plurium in idem placitum consensus." Pand. Lib. 1, § 1, de Pactis. An agreement, by which two parties recipro cally promise and engage, or one of them singly promises and engages to the other, to give some particular thing, or to do or abstain from a particular act, is a contract; by which he means such an agreement as gives a party the right legally to demand its performance. Pothier, Oblig. part 1, ch. 1, § 1; art. 1, § 1. See 1 Black. Comm. 44, 45.

3 Vattel, B. 2, ch. 12, § 152; 1 Black. Comm. 43.

42 Black. Comm. 442.

our systems of municipal law, though practically that law stops short of maintaining it in all the variety of forms to which modern refinement has pushed the doctrine of implied contracts.

§ 324. A compact may, then, be said in its most general sense to import an agreement, according to Lord Coke's definition, aggregatio mentium, an aggregation or consent of minds; in its stricter sense to import a contract between parties, which creates obligations and rights capable of being enforced and contemplated as such by the parties in their distinct and independent characters. This is equally true of them, whether the contract be between individuals or between nations. The remedies are, or may be, different; but the right to enforce, as accessory to the obligation, is equally retained in each case. It forms the very substratum of the engagement.

§ 325. The doctrine maintained by many eminent writers upon public law in modern times is, that civil society has its foundation in a voluntary consent or submission; and, therefore, it is often said to depend upon a social compact of the people composing the nation. And this, indeed, does not, in substance, differ from the definition of it by Cicero, Multitudo, juris consensu et utilitatis communione sociata; that is (as Burlamaqui gives it), a multitude of people united together by a common interest, and by common laws, to which they submit with one accord.2 (a)

1 Woodeson's Elements of Jurisprudence, 21, 22; 1 Wilson's Law Lect. 304, 305; Vattel, B. 1, ch. 1, § 1, 2; 2 Burlamaqui, part 1, ch. 2, 3, 4; 1 Black. Comm. 47, 48; Heinecc. L. 2, ch. 1, §§ 12 to 18; (2 Turnbull, Heinecc. System of Universal Law, B. 2, ch. 1, §§ 9 to 12 ;) Id. ch. 6, §§ 109 to 115.

2 Burlamaqui, part 1, ch. 4, § 9; Heinecc. Elem. Juris Natur. L. 2, ch. 6, § 107. Mr. Locke is one of the most eminent authors who have treated on this subject. He founds all civil government upon consent. "When," says he, "any number of men have so consented to make a community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act, and conclude the rest." Locke on Government, B. 2, ch. 8, § 95. And he considers this consent to be bound by the will of the majority, as the indispensable result of becoming a community; "else," says he, "this original compact, whereby he, with others, incorporates into one society, would signify nothing, and be no compact at all." Locke on Government, B. 2, §§ 96, 97, 98, 99; Id. §§ 119, 120. Dr. Paley has urged some very forcible objections against this doctrine, both as matter of theory and of fact, with which, however, it is unnecessary here to intermeddle. The discussion of them would more properly belong to lectures upon natural and political law. Paley on Moral and

(a) See Maine, Ancient Law, ch. 9; Lectures on the Social Compact, at Providence, by John Quincy Adams, 1842.