Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1867-03-16
The State Of Arkansas vs., SAM
Uel ". Williams.
OPINION.
Bg THE COURT. NR. JUSTICE PIKE.
Continued.

] Suppose 3 contract between indiVid
uals, in which it was expressly stipulated
/ that neither party should ever have
I right To rescind the contract for any viO
lation Of its terms, stipulatiOns and con
| ditiOns by the other but that how mucl
sOever one should fail TO perform his part
or how much sOever he should viOlat,
/ the rights of the other under the con
/ tract and falsify his own promises, anC
DO what by the contract he was bounC
/ not to do, still the other should eontinu.
faithfully to perform on his part, anC
bear the burdens after ceasing 10 rsaE
any benefits, of the contract. A COurt
of Enquiry would not let such a contract
stand. II would rescind it without hesi,
tatiOn, as on its face iniquit0us. One
party cannot be bound and the Othel
loose.
Such stipUlations are hardly imagin-
able between individuals. They are not
possible between States. -, Power may
impose them on the cOnqtded, but not
with the mOckery Of formal contract.
If such bargain could be made between
States, it would make one the tyrant and
the other the slave. and il wOuld at once
be plain that il was simply the viii OF
Power, borrowing the form of contract.
There is no hint or indication in the
Constitution that this was done by any
OF the States. They made the compact,
providing no remedy except where the
National Courts would have jurisdiction,
f0f any violation Of its provisions by any
of the States. None was needed be-
cause the parties that made il were SOW
ereigns, and any one Of them could at
pleasure retire from the COnfederacy, and
on its part rescind the compact. Even
as a power 10 be used only in the last re-
sort, when all other remedies should
prove ineIfectusl, and when the griev-
ances should have become Gn6t to be
longer endured, the guarantee against
Wanton violation was sufficient. The
honor Of each sovereign State would be
concerned, not to submit to wrong or in
suit; and they did not mean to delegate
TO any other power or 70 any other joint
agency the TepsratiOn Of such injuries to
their honor. The rightof succession was
the best and only sure guarantee against
usurpation. 1t was an attribute of SOW
ereiguty, Without 1t a State would no
longer be sovereign. There is no clause
OF word % indicate that the states be-
came eunuchs for the Unions sake.
In strictness, in reality, the States
neither granted away nor parted with
any powers. Each had the same powers,
the pensTy powers and attributes Of
sovereignty. All agree to refrain from
the separate exercise of certain of these
powers and TO exercise them jointly, by
means Of a national corporation. The
nations sovereignty Is the sovereignty
Of the States not something above the
States. There is, iH lar, an inEssliture
Of the nation with certain powers; but
that is a fiction for beneficial purposes.
In reality, the States exercise all the
powers Of sovereignty and government,
through their agents, IN id3C the agents
Of the nation composed Of these States,-
their Agents, the Departments and
Officers Of the National Government.
The power Of one State to withdraw,
is not a power that can be exercised by
al the States jointly. Therefore it re-
Elains to each State. To use the COM
mon phrases, it is neither parted a0ith
nor granted away, and the States do not
agree with each other not 10 exercise II.
We had come, insensibly, TO attach 70
the word State a meaning different
from and inferior TO the true one, The
admission Of new States and their small
importance, caused it. a State, er ~
yolIaiai is sutOcratic, self governing
sovereign over itself We call our States
d..
eign. When they united, by the cOnsh-
tuition, into an endless chain Of many
links, they we're distinct Municipalities,
each complete in itself, as much so as
Hungary and Austria were. when sepa-
rate kingdoms, or England and Scotland.
If Virginia, New York, North Carolina
or Rhode Island had never ratified the
constitution, already in full force between
nine other States, it would have re-
mained free, sovereign, independent
State, until the end Of time, If 1t chose
10 remain SO, unless subjugated.
There can be no doubt of the rights OF
Hungary to resume her independent
nationality, II Austria violates the terms
Of the union between them and as lit
tie Of the rights Of Scotland, IN similar
case. The right is not right Of revolu-
tiun, though power may prevent itB
peaceful exercise. As little, in our Opin-
ion, did the American States create
State superior Ia all Of themselves,
paramount over all, composed of all the
people Of all the States and grant away
t0 that superior, beyond power of recall
or revocation, the chief powers Of Sow
ereignty over themselves. Il il upon
that theory alone, that the right of seces-
sion can be denied, aud il is that theory,
in vindicati0n Of which the present war
Is waged and the northern States by
laws formally enacted declare the peo-
pie Of the Confederate States rebels and
traitors, and claim the right to make
new States Of portions Of the old Conn
monwealths 70 attain the whole people
OF treason, and cOnfiscate all estates, and
to empower one-tenth Of the voters Of a
state, or any fraction amounting with
al ole 50
make new constitutions Of government
aud set on foot new goyeruments in our
states.
The power 10 dissolve every contract,
for clear violation Of its terms, is some
where; because the right exists, in the
nature Of things. i is like the Deity:
it cannot not exist. Where there are
two parties to a contract, and one can
break his part, and still compel the other
TO abide il, the former is master, by
means OF the law OF Force and Injustice.
The right was certainly retained by each
State, while cOnfederated: it was not
relinquished by the constitution Of gov
ernment of 1877 the States made no
agreement not TO exercise it, or limiting
their right to exercise it: and therefore
We are clearly Of opinion that il was re-
tanned as an inherent attribute,-it does
not even need 10 say, Of the sovereignty,
but Of theYery individuality OF the State.
Even If the judipiaFv could Judge TIE
existence Of the riRhtSynd decide it in
the negative, It could not, in any event,
the right conceded or adludged, decide as
to the sufiiciency Of the cause. II We
had not diselaimed the former power,
We should be constrained to disclaim the
latter. However the right may be limi-
ted by considerations Of equity and JUS
tice however clear ought to be the
grounds and reasons fer its exercise; how
cautious s0ever ought the legislative
mower or the people in convention 70 be
before proceeding TO a measure so eK-
trene what efforts soever ought To be
made to delay or avoid applying this
remedy in the last resort; all that was
for me people to consider, in their Leg
tsIafnre or In their convention. Their
decision was, ia the nature of things,
6rSI a. to the sufiicieney Of the
liHi Tbav have decided IL sufficipnf