Page:Hawkins v. Filkins 01.pdf/34

RhTERM, 1866.] under the present constitution took effect, there was no government whatever in the state of Arkansas; for no one will contend, that there can exist a government, without the adoption of some fundamental rules, by which the sovereignty is transferred from the individual members of society to a corporation of their own creation. Until this is done, there is no government—no sovereign power to govern conferred by the people, and, of course, it is retained by them individually.

If the convention of 1864 had power to do this, then, a state convention may destroy its state government. This we have already said the state cannot do, whether attempted by ordinance or otherwise. If the bond of union of the states is, as we have held, perpetual, in defiance of the powers of a state, or its efforts to sever them, it is bound to keep in existence a state government, republican in form, and by an indissoluble bond of union, in connection with the federal government. In no other condition can a state fulfill its covenant of duty with the federal government.

The most extreme doctrine of the right of secession, never went beyond this, or could effect more.

Upon principle, if the convention of 1864 had power to declare the constitution of 1861 void "ab initio," most clearly that of 1861 had a like power to declare the constitution and government of 1836 void. The people, from whom all power is derived, never delegated to any convention the power to destroy all government; nor, as we have seen, can any such power be exercised by the people of any state, without violating its compact with the federal government. Nor is this assumed power permissible for another reason. It is, also, in violation of that clause in the federal constitution, which denies to a state the right to pass laws ex post facto, or laws impairing the obligation of contracts. Fletcher vs. Pick, 6 Cranch Rep. 87; New Jersey vs. Wilson, 7 Cranch Rep. 161. "It is immaterial whether the contract be between a state and an individual, or between individuals only; the contracting parties, whoever they may be,