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the New Constitution from the Old, as you call it. In presenting my views on this point I, too. will premise so far as to say, that I never did agree with Judge Story in his historical account of the Declaration of Independence, and his argument founded thereon, that the people of the United States became one nation at that time, or during their Colonial existence. I have always agreed with Mr. Curtis and Mr. Motley, that the Declaration of Independence was made by the Colonies jointly, but for the independence of each separately. That they were so acknowledged to be separate Independent Sovereign States by Great Britain, in the Treaty of Peace, and that the first Union formed by the States, during their common struggle for that separate independence, was a Confederation between distinct separate Sovereign Powers. Further, that that Union was a Confederation of States. It was a bare League, founded upon Compact between distinct Powers, acknowledging each other to be Sovereign in all respects whatsoever; and I also hold it to be true, that the Convention of 1787 was called with the sole view of revising those articles of Union between the States for the purpose of making it a firm National Gov. ernment between them as States for all external purposes, without changing the Federative basis of the Union. I do not question the material facts of our history as far as you have gone; nor can it be questioned that the States, in responding to this call for the Convention, understood it in that light. This, their respective responses, you have collated and read, conclusively show, But my position is, that after the Convention met, upon a conference and a free interchange of views with them. selves, they found the defects in the old system to be se numerous and thorough (extending not only to the want of power in Congress to regulate trade, and the power
to pass laws to operate directly on the people of the States in the collection of revenue, without resorting to requisitions on the States in their corporate or political capacities, but running through the whole system), that it was necessary, in order to do any thing efficiently, to abandon their instructions entirely, and with them, to abandon all idea of remodelling the Confederation. With these views and under these convictions, as I understand it, they determined to form and present to the whole American people a plan of government for them as one people or Nation, based upon the principle of a social Compact, and not upon any idea of a Compact between States, as the Articles of Confederation were, at that time, universally acknowledged to be. In other words, the Convention, as I maintain, came to the conclusion that the only cure or remedy for the innumerable defects and evils of the Articles of Confederation was a total abandonment of them, and all ideas of any government founded upon Compact between States, and to substitute in lieu of it a government of the whole people of all the States as one Nation.
My views on this subject are very well expressed by Mr. Motley, in that part of his article which you have referred to, but did not read. Here it is :
. But there were patriotic and sagacious men in those days, and their efforts at last rescued us from the condition of a Confederacy. The Constitution of the United States was an organic law, enacted by the Sovereign people of that whole territory, which is commonly called, in geographies and histories, the United States of America. It was empowered to act directly, by its own Legislative, Judicial, and Executive machinery, upon every individual in the country. It could seize his property, it could take his life, for causes of which itself was the
Judge. The States were distinctly prohibited from opposing its decree or from exercising any of the great functions of Sovereignty. The Union alone was supreme, any thing in the Constitution and laws of the State to the contrary notwithstanding. Of what significance, then, was the title of “Sovereign' States, arrogated, in later days, by communities which had voluntarily abdicated the most vital attributes of Sovereignty ? * * *
“It was not a Compact. Whoever heard of a Compact to which there were no parties ? or, whoever heard of a Compact made by a single party with himself? Yet the name of no State is mentioned in the whole document; the States themselves are only mentioned to receive commands or prohibitions, and the people of the United States' is the single party by whom alone the instrument is executed.
6 The Constitution was not drawn up by the States, it was not promulgated in the name of the States, it was not ratified by the States. The States never acceded to it, and possess no power to secede from it. It was ordained and established over the States by a power superior to the States—by the people of the whole land, in their aggregate capacity, acting through Conventions of Delegates, expressly chosen for the purpose within each State, independently of the State Governments, after the project had been framed.”
This position of Mr. Motley, in the main, accords witli my own, and it perfectly accords with another statement of Judge Story, with which I do fully agree, also; and that is when he says: “In the Convention that formed the Constitution of the United States, the first Resolution adopted by that body was that a National Government ought to be established, consisting of a Supreme, Legislative, Judiciary, and Executive.' And
from this fundamental proposition sprung the subsequent organization of the whole Government of the United States.” “It is then our duty (says Judge Story) to examine and consider the grounds on which this proposition rests, since it lies at the bottom of all our Institutions, State as well as National.” I read from vol. ii, Book iii, ch. vii, $ 518. I will not ask you to reply to me specially, but what reply have you to make to these positions of Mr. Motley and Judge Story. What say you to .Judge Story's argument on this view of the subject ?
MR. STEPHENS. In the first place I say, I am no less amazed at the statement of Judge Story, in the extract you have just read, than I was at the statement in the extract read by Judge Bynum from him before. It is, indeed, wonderful to me how Judge Story could have said, that from the first resolution passed by the Convention, which he quotes correctly, and which he speaks of as a fundamental proposition, the subsequent organization of the whole Government of the United States sprung. I shall show you, most conclusively, that this statement, and the whole argument built upon it, by him or others, have just as little ground to stand upon as his other statement and argument had, by your own admission. He says it is our duty to examine and consider the grounds on which this (his fundamental proposition) rests. Let us then so examine and so consider it, since in his judgment and yours it seems it lies at the bottom of all our Institutions, State as well as National. It certainly does lie at the bottom of his as well as your whole argument attempting to show that the Constitution of the United States established a National and not a Federal Government, and that it is not a Compact between Sovereign States.
Now, what grounds has this argument or consideration of the subject to rest upon? These and these only: The first Resolution passed by the Convention was as Judge Story states it, but it was not the first acted upon. It was the last of a series of three. The Convention was in committee of the whole, having under consideration a plan of Government, submitted by Governor Randolph, of Virginia. The series of Resolutions, of which the one alluded to by Judge Story is the last, was offered by Gouverneur Morris, of Pennsylvania, to be substituted in lieu of the first Resolution in the plan offered by Governor Randolph. Here are these Resolutions constituting this series:*
“1. Resolved, That a Union of the States, merely Federal, will not accomplish the objects proposed by the Articles of Confederation, namely, common defence, security of liberty, and general welfare.
“2. Resolved, That no treaty or treaties among any of the States, as Sovereign, 'will accomplish or secure their common defence, liberty, or welfare.
“3. Resolved, That a National Government ought to be established, consisting of a supreme Judicial, Legislative, and Executive.”
The first two of these resolutions were not agreed to, It was said, that if the first of this series of resolutions was agreed to, the business of the Convention was at an end. The first two, therefore, were dropped. The last was taken up and adopted—but how adopted or in what sense, very clearly appears from Mr. Yates's account of it. * « This last Resolve,” he says, “had also its difficulties; the term supreme required explanation. It was asked, whether it was intended to annihilate State Govern
* Elliot's Debates, voi. i, p. 391. Madison Papers vol. ii, p. 747. † Elliot's Debates, vol. i, p. 392.