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law, says, that treaties are obligatory on the subjects
tory as conventions between the contracting powers ; but they have the force of law with respect to their subjects.' These are his very words: "Ils ont force de loi a l’egard des sujets, considèrès comme tels;' and it is very manifest, continues he, that two sovereigns, who enter into a treaty, impose, by such treaty, an obligation on their subjects to conform to it, and in no manner to contravene it."* Every treaty existing, to-day, between the United States and every other Government or Governments is the Supreme law over the subjects of such Government or Governments, as well as over the citizens of the several States of this Union. That is, every such treaty is a law, Superior to all other local laws in both countries, over which it operates. Their Courts are bound to so hold, and do so hold. This no more affects the allegiance of the subjects of those Governments than it does the allegiance of the citizens of these States. These treaties are Compacts between the Parties to them, and laws as to their subjects or citizens.
This clause in the Constitution, therefore, settles nothing on the question of allegiance. The Constitution may be a bare convention or compact between the States as Sovereigns, and yet be the supreme law. while it continues over their citizens, without affecting their ultimate allegiance in the slightest degree. So we will proceed with our inquiry as to the nature of the present Government of the United States, and enter into an examination of the vexed question, where, under it, the ultimate Sovereign power resides. These are essential facts first to be ascertained and settled.
* Elliot's Debates, vol. iv, page 279.
INQUIRY INTO THE NATURE OF THE UNION—A BRIEF HISTORICAL SKETCH
THE DECLARATION OF INDEPENDENCE-THE FIRST CONFEDERATION-A
MR. STEPHENS. The object of our immediate inquiry, is the nature of the Government of the United States, and where under it dwells or resides that Paramount authority which in the last resort can rightfully and peaceably make and unmake Constitutions, and to which allegiance is due. Is it in the whole mass of the people of the United States, territorially considered as one Nation, or in the People of the States, severally and separately; each for itself, untramelled by any obligations or restrictions incurred or imposed by any Articles of Union existing between them?
To understand and decide this question correctly, a brief historical review is necessary. From what has ; been said and assented to, it clearly appears that some
thing exists in this country which by all sides is called 66 the Union.” This must have parties of some sort. It requires parties to make any thing bearing the designation of Union. Who are the parties to this Union ? Are they the whole mass of the People, or are they States ?
It also appears in the same way, that what is called the Constitution of the United States sets forth the terms of this Union, so admitted to exist on all sides. Now, to understand the force and meaning of the terms used in this written instrument called the Constitution,
it is essential to know the state of things existing, and the relations which the Parties to the Union under it bore toward each other before its formation or adoption. To understand the force and effect of a new law, it in often necessary to inquire into the old law upon the same subject matter, in order to see the evils under the operation of the old one, and the objects aimed at in the remedies provided by the new. To understand properly the present Supreme law, we must look into what was the Supreme law before. The present is not the first Constitution of the United States. 66 The Union” existed under an old Constitution. The main object of the present Constitution, as appears in its preamble, was to make 6 the Union" then existing more perfect. It was not to make a new one, or to change the fundamental character of the one then existing; no such purpose at
only to make the previous “Union” more perfect, or better adapted to secure the great objects for which it had been originally formed.
PROF. NORTON. The first Union to which you refer was nothing but a Confederation between States. · The terms of that Union were called Articles of Confederation. They were not called a Constitution. I cannot concede the propriety of styling the Articles of Confederation a Constitution. Daniel Webster on some occasion said—“ If there is one word in the English language that the people of the United States understand, it is the word Constitution. It means," said he, “the fundamental law," and nothing like League, or Compact, or Articles of Confederation. I have often thought of the point and force of his illustration on that occasion, of the importance and the power of words barely.
MR. STEPHENS. Mr. Webster did say something like what you quote him as saying. I remember it well, and perhaps may have something more to say about him and his position in the exposition of the Constitution he made on the occasion to which you allude, before we get through. But were not the Articles of Confederation a Constitution even according to his own definition ? Did they not constitute the fundamental law of the Union of the States under the Confederation of which you speak? Being the fundamental law for their government for the time being, is it not perfectly proper to style them a Constitution upon the authority of Mr. Webster himself? In so styling them, I use the same term that has been applied to them by the highest authority, not only of that day, but since. As you question its propriety, however, we had better settle all points of difference as we go along, especially as a great deal often depends upon words barely, which are frequently, as Mr. Webster says, much more than sounds, being real things within themselves. Let me therefore just here refer to some authorities which I think clearly justify the use of the term as made by me. Mr. Curtis, in his History of the Constitution of the United States, volume i, page 139, says these Articles of Confederation were " the first written Constitution of the United States.” Here is Marshall's Life of Washington, volume ii, page 83. In it is Washington's letter to the Governors of the several States, dated 8th of June, 1783, in which he speaks of the Articles of the then existing Confederation as “the Constitution" of the States. Here is the first volume of Elliot's Debates ; on page 96, is given, in full, a letter from the then Congress to the several States, making several recommendations to them. It is dated 18th of April, 1783. In this letter, on page 98, these words occur : “ The last object recommended is a
Constitutional change of the rule by which a partition of the common burthens is to be made.” This shows that the men of that day understood the Articles of 6 the Union” then existing to be a Constitution. Changes in these Articles they characterized as Constitutional changes. Here is the ninth volume of Sparks's Writings of Washington. In this are given quite a number of letters written by him in 1788, after what I call the new Constitution had been agreed to by a Convention of the States in 1787, of which we shall have much to say perhaps hereafter. In these letters, Washington called this instrument, as I did, the new Constitution. Here is a letter · written on the 23d of February, 1789, to Mr. Monroe,
in which Washington says: “I received, by last night's mail, your letter dated the fifteenth of this month, with your printed observations on the new Constitution," etc. Here is another letter written by Washington to Henry Lee, under date 22d September, 1788, in which he also calls it the new Constitution. Another to Benjamin Lincoln, on the 26th of October, 1788, in which he uses the same language. These letters (and I refer to but few of them) show, beyond cavil, that Washington considered the old Articles of “Union," as much as the new, a Constitution. Besides this, the writers in the Federulist usually designated the paper then before the States for their consideration as the new Constitution in contradistinction to the old or the Articles of Confederation. I cite but a few of them: Numbers 22, 39, 41 and 44, pages 147, 255, 296 and 324, in Dawson's edition of the Federalist. Moreover, two of the States at least; Massachusetts and New Hampshire, in their Ordinances adopting and ratifying the present Constitution, expressly style it a new Constitution. Is more authority needed on this point to justify my use of the term Constitution in apply