the people of the several States; and that the latter abrogated the former, because it proceeded from a superior power. The people of the several States, by a very long acquiescence, had adopted the Articles of Confederation as their own act. Under these Articles many Treaties had been concluded, many other engagements had been entered into, war had been carried on, and peace made, in their name, and with their approbation. All these, were acts, that could only have been done by acknowledged agents and Representatives of the Sovereignty, which, as has been shewn, then abided in the people of the several States, in their corporate character of States, and was specially reserved to them as such in this instrument.
Therefore, the change of this covenant, made in a manner directly in opposition to one of its provisions, and against the will of some of the parties, cannot be justified upon this ground, but must be referred to the other. If so referred, the reason of that provision of the present Constitution, which confined its operation "to the States ratifying the same," even after it might be ratified by nine States, is obvious. The old Covenant being annulled, the States were remitted to their former condition, and could not then be bound by any new covenant to which they were not parties.
This example well illustrates, what a priori reasoning had established, that a covenant broken by one party, may by any other party be rightfully declared, no longer obligatory upon itself, and so practically annulled, as to itself, by the party making this declaration.—If this was not so in the case of States, who can foresee the consequences? Two States agree to exchange different portions of their territories: may one of them retain that which it has agreed to give, and rightfully demand of the other the delivery of what was the equivalent? Commercial advantages are given by one, as the consideration of like advantages to be received by itself: Is one bound to give, and not entitled to receive? It seems monstrous to affirm these things; but yet such are the inevitable consequences of the proposition, that a broken covenant is still obligatory, upon the faith of the party by whom it has not been violated.—It will not do to say, that a party injured by a breach of a covenant, may rightfully enforce performance from the other.
