The Constitution and Mr. Motley by Rowland E. Evans
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Date: 0101-01-01T00:00:00+00:00

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36 p. 19 cm.

Philadelphia,

Pub. for the author,

1861.

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AND MR. MOTLEY. PHILADELPHIA: PUBLISHlED FOR% THE AUTHtOR. 186i.4, - 400.

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TIlE CONSTITUTION AND MR. MOTLEY. TEE Essay on the CONSTITUTION OF THE

UNITED STATES, which appeared in the LONDON TIMES, in May last, under the initials J. T. M., though not, in form, a letter, has been habitually called so, we believe, on both sides of the water. We conceive the reason to be that, coming from an American who had gained distinction abroad as a historian, it was felt by his countrymen to be a communication to them, for their instruction on matters of great moment, and within the scope of, or closely relating to, his department of science. This has had some influence with us, in the examination of this essay. In this land of superficial readers and thinkers, particularly superficial in what relates to politics, literary reputation is confounded with literary merit; the writings of an author have influence more in \ i \

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4 accordance with the weight of his name, than the value of his words. In order, therefore, to test the literary execution of the letter, we shall first analyze the three opening sentences, and then examine into the ability of the author as a thinker. When we have done, the reader, we hope, will be able to decide for himself, whether the universally recognized author of it, to judge him only by the “letter,” could probably have justly entitled himself to his reputation, either by the gracefulness of his words or the wisdom of his thoughts. It begins thus: “The de facto question in America has been referred, at last, to the dread arbitrament of civil war.” Now, if the reader wishes to be sure that he has here really taken in an idea, let him ask himself what question of fact has been in dispute, and has, at last, been referred to the sword. We have been residing in this country since long before the insurrection broke out, reading newspapers not a few, and we cannot call to mind any matter of fact, great or small, that is in dispute giving rise to the war; and there is none. This defacto shadow of a fancy is contrasted, a little farther on, with the de jure question, which is called “a different one;”

the real, however, and only one, finally took the form: ” Has a State the

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C) right, peaceably, to secede?” The author, probably, meant to say that the question of right had been referred to the practical solution of war.

The de jure question seems to be the real subject of the letter. We say “seems;” for it is rambling and aimless throughout, and when we reach the end, we find it hard to determine what exactly it has been striving after in all its tortuous length, unless it is effect. In the next sentence, we are told that “Time and events must determine whether the great Republic is to disappear from the roll of nations, or whether it is destined to survive the storm which has gathered over its head.” In other words, the result of the war cannot be foreseen. But is this so remarkable a peculiarity of the war as to require to be announced in a magnificent sentence? We think that it was not necessary to advert to it at all; and we venture to guess, not uncharitably, as the tone of the letter will show, that the bootless idea was introduced for the sake of the sounding words in which it might be put forth. The third sentence says: “There is, perhaps, a readiness in England to prejudge the case; a disposition not to exult in our downfall, but to accept the fact; for nations, as well as indi 1*

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6 viduals, may often be addressed in the pathetic language of the poet:‘Donec eris felix, multos numerabis amicos, Tempora cum faerint nubila, nullus erit.’ Yet the trial by the ordeal of battle has hardly commenced, and it would be presumptuous to affect to penetrate the veil of even the immediate future.” The whole sentiment of the Latin lines quoted is, that men who are fortunate are surrounded with friends, while they who become unfortunate are deserted; not at all, that their downfall is exulted over; but we are willing to give it this turn. If we then examine the sentence, we shall find there is logic in it. We can turn it into a syllogistic form, and ascertain its correctness as we go. Let us try. Men are disposed to exult in the downfall of others. Nations are like men in this respect. The English are a nation; they think we have fallen in some sense or other. Therefore the English are not disposed to exult in our downfall. Thus, a matter of fact, which ordinary men would suppose could only be ascertained by observation or evidence, is proved by the aid of two lines of “pathetic” poetry. They are pathetic, we suppose, because they come from the Tristia, usually translated “Elegies;” but if they had come from Juvenal,

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7 would not J. T. M. have felt bound to call them sarcastic, had he happened to know that this poet was a satirist? These “Elegies,” however, as they are called, both in French and English, are more properly satires.

They are denunciatory; and a French critic remarks, that notwithstanding their name, they are not saddening. Ovid, their author, uses the lines quoted in a vehement denunciation of an ungrateful friend. The argument of the letter, as we have intimated, seems intended principally to contravene the right of peaceable secession. It says for once truly respecting it, that “the right and the wrong may be easily read by all who are not willfully blind.” But how is it with those who are blind against their will? And why inflict six columns of very hard reading on the public for the sake of convincing those who, having the means of ascertaining the matter with facility elsewhere, must, it should be presumed, already be convinced? But, in giving the letter credit for truth once, we must add, conditionally, if we understand its meaning, which we suppose to be, that the rightfulness or wrongfulness of the principle of secession may be easily determined according to the Constitution. The right to secede is not given by the Constitu

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8 tion, and we do not understand how a principle so inconvenient, and so inconsistent with the permanency of the Government, can be implied. And yet Mr. Raw]e, a high-toned Federalist, announced it in his treatise, published more than thirty-five years ago, as part of the constitutional doctrine, although the party to which he belonged was in the main hostile to State rights, and otherwise suspected of monarchical tendencies. The reader must not suppose that our man of words has begun to reason in earnest yet; he is only indulging in a literary prelude, drawing on his imagination for ideas to be dressed up in phrases according. to his taste.

So he goes on to say, that it was “often asked” in England, “why has the ‘United States’ Government plunged into what is sometimes called’this wicked war’?” Very silly people he must have associated with, to have so foolish a question put to him “often.” He continues: “Especially it is thought amazing in England that the President should have called for a great army of volunteers and regulars, and that the inhabitants of the free States should have sprung forward as one man at his call, like men suddenly relieved from a spell.” Now, though we were not in England, we will

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9 venture to say, that it was neither thought nor felt to be amazing that the President should have called for “a great army,” though it was to have the uncommon property of being composed “of volunteers and regulars.” To come down to plain phrases, they could not have been amazed, in England, that the Government, attacked with arms, should have resisted with arms.

The amazement would have been, had it done otherwise. They were no doubt surprised at the suddenness of the outbreak, the strong and all-pervading excitement of a great nation, and the rush of the vast multitudes toward Washington. Next follows some more fine writing; during which there is something about “a proclamation from the American palladium,” but we are not told what that palladium is, nor how it can issue a proclamation.

Reading on, however, a little way farther, we find ourselves in possession of the information that attachment to the Union is “not wholly extinguished in the nine millions of white men who dwell in the slave States.” The statistics, here liberally thrown in, incidentally, are as fully to be relied on as the other statements of the letter; but it does not account for the great increase in one year, the census of 1860 putting the number of .

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10 white inhabitants at a little more than five and a haif millions. At-length, the subject of the Constitution is really reached, and the great constitutional teacher informs his disciples that “the body politic, known for seventy years as the United States of America, is not a Confederacy, not a compact of sovereign States, not a copartnership; it is a Commonwealth.” The body politic here spoken of has been known by the same name as at present for eighty-three years-the title having been conferred by the “Articles of Confederation,” signed July 9, 1778. Moreover, we must suggest, that the possession of all the qualities which are so emphatically denied to it, would not prevent its being a “Commonwealth;”

and that the words are not so different in signification as J. T. M.

appears to suppose. A Confederacy is a compact between States, usually. A copartnership is a compact between individuals; and then there is the “original compact of society,” by which men may confederate themselves into a “Commonwealth,” as we shall see. During the Confederacy, it was customary to designate the Union as the Federal Union, and the Government as the Federal Government, the designating adjective being derived from the Latin … I.,,.

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11 foedus, a compact, and meaning “relating to a compact,” as lexicographers are all agreed. When the Constitution was formed, the men of the day would have ceased to use the designation if they had thought the principle had ceased, but they did not, and it has continued in use till the present day, when, in the midst of an insurrection, caused by an increasing fear of the hostile dispositions of the General Government toward the rights of the States, a writer makes his appearance to employ himself in rendering that Government still more formidable in its powers for mischief, by audacious denials of the sovereignty of the States, and impudent allegations that they are not confederated but consolidated; with what view will be seen. His readers, whose rights are involved as well as his own, in this astonishing doctrine, naturally expect an explanation, and get it in this wise: He asserts that enormous evils existed under the Confederacy; that these evils were caused by the principles of State-sovereignty and confederation; that the Constitution was framed to abolish the evils, and therefore it necessarily abolished the principles themselves. Speaking of the evils, he says: “When the war had ceased, we sank rapidly into a condition of utter impotence, imbecility, anarchy.

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No laws could be enforced, no insurrections suppressed, no debts collected. NTeither property nor life was secure.” These words might be cut out and made to do good service in a history of France of‘93; but we do not recollect to have ever before read or heard that such a frightful state of things had existed here during the old Confederacy, or at any other time. Admitting it had, however, have we not as good a right to assert that it was “the fruits” of such “republicanism as the Confederation had established?” And then argue, like the latter, that the framers of the Constitution must have meant to abolish republicanism, and therefore that they did. It is hardly worth while to contend in such argument, but in regard to the facts it may be strongly inferred from the history of the origin of the Constitution, that the people were not so vividly impressed with a sense of the advantages of a more united government, as to make them rush toward it as a refuge from the political sorrow and danger in the midst of which they are alleged to have been living. The Confederation originated during the revolutionary war. It was formed with great difficulty, some of the States refusing to join in it, notwith 12

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13 standing the outside pressure of the war, and the obvious advantages of being united against a common enemy. Several were brought into it only by the aid of a sort of bribery, the promise of an interest in certain public lands. The “Articles of Confederation and perpetual Union” having been agreed upon by the States, (not by the people of the whole,) as sovereigns, and as a league among sovereigns, each State, whether large or small, having one vote, the provision that it should not be altered, except by a unanimous vote of the thirteen States, was a logical necessity. It would have been implied though not expressed. The league was made and the revolution was achieved; but still there were troubles, due as much to the consequences of the war as to any other cause. An insurrection broke out, indeed, but it was suppressed, our author’s assertion to the contrary notwithstanding. History, too, tell us that it grew out of the war exclusively. In 1786 an Act of the Legislature of Virginia was passed, proposing a Convention of the States, to meet at Annapolis,.for the purpose of considering the commercial interests only, of the country, and seven delegates were appointed to represent the State.

Eight of the other States concurred in the proposed measure, so far as to appoint delegates; 2

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14 the other four paid no attention to it. When the Convention met, only twelve delegates appeared, representing but five States. Of the seven delegates appointed by Virginia, only three came, and of the delegates appointed by the four others, not one attended. This does not show much present sense of suffering, attributable to the league, nor hope of escape by strengthening its bands, even commercially. In fact great jealousies existed everywhere on the subject of these very rights, which J. T. M.

thinks he can obliterate so readily, with so weak an instrument as his pen. The delegates at Annapolis, not being able, in consequence of the thinness of the attendance, to proceed in the business on which they had come, contented themselves with an address to the Congress, advising the call of a convention for the regulation of commerce, and for other matters. This advice being approved of, an act was passed, recommending to the State Legislatures to send delegates to a convention for the “sole and express purpose of revising the Articles of Confederation.” Twelve States accordingly appointed 59 delegates, the names of only 39 of whom were in the end subscribed to the instrument to be proposed to the States, for ratification by them respectively.

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The indifference with which the new Constitution was received, may be well conjectured, when we learn from the journals of Congress that, at the first meeting, more than a month elapsed in the Senate before a quorum, amounting to only twelve members, could be assembled; and from a similar cause about three weeks were lost in the other house.* This documentary evidence goes far to show that the people did not attribute the evils they were suffering under to the looseness of the bands by which the States were held together, and that they were reluctant to seek for a cure by forming a “more perfect union” than that which they were living under. On the face of the instrument strong jealousy is apparent, from the cautious manner in which power is doled out, and confirmatory evidence of an increase, rather than a diminution, of that feeling is also made manifest by the amendments proposed at the very first session of Congress. They all either add new restrictions, or are restrictive explanations of the Federal power. All the great attributes of sovereignty were, in fact, possessed by the Confederacy, that of levying * Afore than two years elapsed before the Constitution was ratified by all the thirteen States.

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16 money not excepted. The difference is, that it taxed the States and not the people directly; and it could not lay duties on importations. These were its great defects, and the ones which caused its “revision.” The people traced the causes of most of their sufferings to the war, and truly. The statesman saw danger and calamity in the future, both at home and abroad, unless the Constitution should be modeled into a form better calculated for vigor, and, at the same time, with such checks as would prevent its becoming dangerous to the rights of the States, or the liberties of the people. In enumerating the evils of Confederation and State-sovereignty, J. T. M. next blunders into the statement: that “For twelve years after the acknowledgment of our independence we were mortified by the spectacle of foreign soldiers occupying a long chain of fortresses south of the great lakes, and upon our own soil.” Forgetting that, for more than half of that time, the new Constitution had been in force. “We were a Confederacy. We were Sovereign States. And these were the fruits of such a Confederacy and of such Sovereignty. It was until the immediate present, the darkest hour of our history.” Hle evidently does not reflect that the period which

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17 he represents as “the darkest hour” of our former history, has its commencement, according to himself, in the recognition of our independence; and that, according to his mode of reasoning, the evils existing would be more justly attributable to that; and many of them were so in fact. History tells us that the loss of the commercial and other privileges of British subjects did, at first, great injury to American interests. Our author does not care to see that the existing insurrection, which we are suffering from, may, by similar argument, be attributable to the Constitution; nor that it is in fact due to a dread of the self-same spirit that pervades the letter: to a fear lest the desire to extend the prerogatives of the General Government, rightfully or wrongfully, should be carried into practice. The real drift of the letter is manifested by the assertion that, under the Constitution, the “Union alone was supreme.”

There is, however, no such proviso in the instrument. There is one, that it and “laws made in pursuance of it shall be supreme.” It then asks: “Of what significance, then, was the title’ Sovereign’ States, arrogated in latter days by communities which had voluntarily abdicated the most vital attributes of 2*

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18 “But the men of those days word’Sovereign’ was a term of feudal

“The word Sovereign had no mean sovereignty?” knew that the origin. ”

iDg for us.” On what authority is all this said? None whatever. It is mere assertion, and was not, and is not true. “The men of those days” did not know that “Sovereign” is a term of feudal origin, for it is of Latin origin. Then, again, the title of “Sovereign States” was not “arrogated in latter days,” for the second line of the Articles of Confederation declares that “each State retains its sovereignty, freedom and independence.” The instrument was formed in the midst of the war, and “the men of those days” who framed it, did think the word of” significance.”

Some of them continued to think so ten years later. In the address from the Convention, accompanying the presentation of the new Constitution to Congress, (from which, by the way, the letter-writer has made use of an extract, and perverted it,) the following passage occurs: 1 “It is obviously impracticable, in the Federal Government of these States, to secure all rights of independent sovereignty to each, and provide for the interest and safety of all. Individuals entering into society must give a share of liberty to preserve the rest.”

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19 In the last sentence, it is observable, that the language of writers on the “original compact of society” is employed, and applied to States in their sovereignty, but treated as individuals. And Mr. Hamilton, in the 31st number of the Federalist, says: “The State governments, by their original constitutions, are invested with complete sovereignty. In what does our security consist against usurpations firom that quarter?

Doubtless in the manner of their formation, and in a due dependence of those who are to administer them upon the people.” And in the same number: “Everything beyond this must be left to the prudence and firmness of the people; who, as they will hold the scale in their own hands, it is to be hoped, will always take care to preserve the constitutional equilibrium between the General and the State Governments.” And again, in No. 62 of the same work, he repeats the idea: “In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty.”’

Kent, too, 1 Comm. 426, giving an abstract of the great case of McCulloch v. Maryland, tells us: I., i .~.

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“The power of State taxation is to be measured by the extent of State sovereignty, and this leaves to a State the command of all its resources, and the unimpaired power of taxing the people and property of the State.

But it places beyond the reach of State power all those powers conferred on the government of the Union, and all those means which are given for the purpose of carrying those powers into execution. This principle relieves from clashing sovereignty,” etc. We next arrive at the letter-writer’s definition of sovereignty, which is Blackstone’s, in fact, but not acknowledged, and somewhat diluted in language. Indeed he must have been startled and perplexed when he read of governments, that “there is and must be in all of them a supreme, irresistible, absolute, uncontrolled authority, in which the jura summa inmperii, or the rights of sovereignty, reside.” 1 B1. Comm. 49. And yet the great British commentator is treating of the laws of his own really free country, the chief magistrate of which is recognized both at home and abroad as a sovereign. How reconcile this language with the account, which the same writer gives us, of the great restrictions upon the authority of the British crown? It is explained by the theory that Acts of Parliaments are “s omnipotent.” They are promulgated in form of edicts, as if proceeding from the king’s authority, but by the advice of Par 20 1 ……:.~ X.

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21 liament. Some exist which are in the king’s name alone, though passed in Parliament. But no one has yet ventured to apply the word to an Act of Congress; even J.T. M. has not; yet he has covertly insinuated the idea, that all State laws must yield to an Act of Congress. Should the Government of the United States repeal the laws of Pennsylvania relating to real estate, then, according to the spirit of the letter, the act of repeal being supreme, would take effect. But we have to differ from it here, and in the assertion that the States are “shorn of all the great attributes of sovereignty,” and it will soon be seen that we are not alone in the opinion. Sovereigns are equals. One cannot be supreme over the other, or the latter ceases to be sovereign. Wealth and power and numbers do not make incquality in point of law. Victoria is the equal of Soulouque, and the State sovereignty is the equal of the Union sovereignty. The former is supreme as to laws which conflict with its authority, just as the latter is where a State encroaches upon its rights.

In regard to the importance of the sovereign powers reserved by the States, Kent says: “The judicial power of the United States is necessarily limited to national objects. The vast field of the law of property, the very extensive head of equity juris

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diction, and the principal rights and duties which flow fi’om our civil and domestic relations, fall within the control, and we might almost say, the exclusive cognizance, of State governments. We look essentially to the State courts for protection to all these momentous interests. They touch, in their operation, every cord of human sympathy, and control our best destinies. It is their province to reward and to punish. Their blessings and their terrors will accompany us to the fireside, and be’in constant activity before the public eye.’ The elementary principles of the common law are the same in every State, and equally enlighten and invigorate every part of our country. * The true interests and thepermranent freedom of this country require that the jurisprudence of the individual States should be cultivated, cherished, and exalted, and the dignity and reputation of the State authorities sustained with becoming pride.” 1

KIent Corn. 445. As to the comparative importance of the judicial power of the States, and that of the Union, to estimate it, let any one visit the many State courts of the City of Philadelphia alone, and then the one Federal Court for the whole Eastern District of Pennsylvania, embracing about one-half the State, and he will find the latter frequently closed, and the former crowded with suitors and overwhelmed with business, though open almost the whole year. To proceed with our letter. After more than a column of verbiage, assertion, and sham reasoning, 22

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23 we come to a passage which shows us the drift of the gabble about sovereignty. “It was not a compact. Who ever heard of a compact to which there were no parties?” We never did, we confess, except in a figurative sense. But the writer evidently supposes that, if he has proved the absence of State sovereignties, as parties to the Constitution, there can be no compact, because there could be no other parties. Now, though we see in the instrument itself, that it was “Done in Convention by the unanimous consent of the States present,” we will shut our eyes for the nonce and agree that the States are not parties. What then? Why, it fails as a compact, for the want of parties, he would say. But might not the individuals who composed the nation have been the parties? Did he never hear of the original contract of society? In the very chapter of Blackstone, from which he quotes, the following passage occurs, quite apropos: “But though society had not its formal beginning from any convention of individuals, actuated by their wants and their fears, yet it is the sense of their weakness and imperfection that keeps mankind together; that demonstrates the necessity of this union; and that therefore is the natural and solid foundation, as well as the consent of society. And this is what we mean by the

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24 ORIGINAL CONTRACT of society, which, though perhaps in no instance it has ever beenfornmally expressed at the first institution of a State, yet in nature and reason must always be understood and implied in the very act of associating together; namely, that the whole should protect all its parts, and that every part should pay obedience to the will of the whole; or, in other words, that the community should guard the rights of each individual member, and that (in return for their protection) each individual should submit to the laws of the community, without which submission of all it was impossible that protection should certainly be extended to any.” 1 B1. Com. 48. The lines we have italicized show that Blackstone did not think it possible that the contract of society could be “formally expressed at the first institution of a State.” But he wrote before our American Constitutions were formed, and did not recollect that a century before, the settlers of several colonies had entered into written compacts of society before embarking. For instance, William Penn’s “conditions and concessions,” agreed upon in England between him and his colonists, are clearly a compact, expressing the terms on which the future society was to exist. J. T. M., then, has made a great mistake in quoting from Blackstone, “that a compact is a promise proceeding from us. Law is a command directed to us;” for plainly the author quoted had

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25 not in view the distinction between law emanating from the legislative power, and the law by which that power itself exists-that is, the social compact or constitution of a country. It was unnecessary for Blackstone to distinguish between the two; for in his country the omnipotence of the ordinary legislative power is sufficient to repeal the social compact law, by which itself exists. It may be true, that the rule of action prescribed by the supreme power of a State or municipal law, for it is of that he is speaking, is not a contract, but a compact between parties; is not only a law, but is, in most instances, supreme, as one may say, over the law of the land, when it goes into the court for adjudication. Like all writers, however, who have attempted to define the word law, Blackstone was fully aware of the difficulty of the task; and he qualifies immediately, by saying that a contract is “a law binding on the conscience.” Let us now make some extracts from the Eederalist, after making one from the letter.

The new Constitution, says the letter, “Was strenuously supported, and bitterly opposed on exactly the same grounds. Its friends and foes both argued that it had put an end to the system of Con 3

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federacy. Whether it were an advantage, or a noxious change, all agreed that the thing had been done.” But Mr. Madison’s authority will certainly be sufficient contradiction of an assertion of J. T. M. He says, Federalist, No. 39: that “It appears, on the one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State; the authority of the people themselves. The act, therefore, establishing the Constitution will not be a national, but afederal act. “That it will be a federal, and not a national act, as these terms are understood by the objectors. The act of the people as forming so many independent States, not as forming one aggregate nation, is obvious from this single consideration; that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous consent of the several States that are parties to it, differing no otherwise from their ordinary assent than in its being expressed, not by the legislative authority, but by that of the people themselves.” “Each State, in ratifying the Constitution, is considered as a sovereign body, independent of 26

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27 all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, and not a national Constitution.” Then, after showing how far the Government is national, he forms the conclusion: “From this aspect of the Government, it appears to be of a mixed character, presenting, at least, as many federal as national features.” “Among a people consolidated into one nation, this supremacy is completely vested in the national legislature. Among communities united for particular purposes, it is vested partly in the general and partly in the municipal legislatures.

In the former case, all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure. In the latter, the local or municipal authorities form distinct and independent portions of the supremacy, no more subject within their respective spheres to the general authority, than the general authority is subject to them within its own sphere.” Federalist, No. 39. In regard to majorities, there is a matter to which the public mind is not sufficiently awake-namely, that election districts may be so arranged that a minority may elect almost the whole of the delegates to the legislature, or to a convention; and that it may well have happened, that a majority of the people of the United States were opposed to the

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28 adoption of the Constitution, and yet, that the conventions in all the thirteen assented. We will exemplify; but before doing so, we may premise that the members of the State conventions might have been elected by general ticket, or by districts, as the legislatures respectively thought fit. The Constitution prescribes nothing as to this. Suppose one of the States which formed the Constitution to have had 12,000 votes, divided into 12 districts of 1000. In each of 11 districts, delegates are elected favorable to the Constitution by a vote, say of 510 to 490. In the twelfth, the vote against it is unanimous. The aggregate vote of the State for the Constitution will be 510 x 11-=5610. Against it, 490 x 11+1000=6390. Eleven delegates in the convention representing the minority, and only one the majority. This is an extreme case, but showing a principle which is operating with more force than is generally suspected; and it may well have happened, supposing it to have operated in several of the States that a majority of the votes were actually opposed to it. In the convention, Mr. Madison advocated the principle of State sovereignty, as it now exists. Mr. Hamilton, on the contrary, was utterly opposed to leaving any sovereignty in the States, and yet we

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29 have seen that he, enemy to “the system of Confederacy” as he was, admitted that the States have “complete sovereignty;” and in another place speaks of the new Constitution as establishing ” a compound republic, partaking both of the national and federal character.” The reader now has to judge between J. T. M. on one side, and Hamilton and Madison on the other. We leave him to decide for himself, and we turn to examine some other parts of the “letter.” Among the rigmarole at the beginning, we have been told that this Government is “not a partnership;” but before we get to the end, we find Burke quoted as saying-and what he says is fairly to be understood as applying to all Governments “A State ought not to be considered as nothing better than a partnership, agreement in a trade of pepper and coffee, calico or tobacco, or some other such low concern. It is to be looked on with other reverence; because” “it is a partnership in all science, in all art-a partnership in every virtue,” etc. So, again, J.

T. M. tells us that “The use of force-of armies and navies of whatever force-in order to compel obedience to the civil and constitutional authority, is not’ wicked war,’ is not civil war, is not war at all!” 3*

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o0 It must be peace then. But why is the first sentence of the letter, which tells us that it is “a civil war, so bluntly contradicted? We are assured, in another place, that ” It is not a compact. * 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.” We will not stop to characterize, as we feel provoked to do, the assertion that “no State is mentioned in the whole document;” but when a man asserts a thing as a matter of fact, does not he impliedly pledge his veracity? We will pledge ours that, to the best of our knowledge and belief, the Constitution is subscribed with the name of “Geo. Washington, President and deputy from Virginia,” and with the names of’all the States present, and signatures of at least one deputy from each.’ The following short extracts from 3 Madison Papers, 1598, 1600, relative to the signing of the instrument, are to the purpose: DR. FRANKLIN “moved that the Constitution be signed by the members, and offered the following as a convenient form, viz.:‘Done in Convention by the

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31 unanimous consent of the States present, the seventeenth of September, etc. In witness whereof we have hereunto subscribed our names.’” “This ambiguous form had been drawn up by MR. GOUVERNEUR MORRIS in order to gain the dissenting members, and put into the hands of DR. FRANKLIN, that it might have the better chance of success.” “On the question to agree to the Constitution, enrolled, in order to be signed, it was agreed to, all the States answering, aye.” The italics in both the extracts are in the book from which we copy. J. T. M., nevertheless, has not hesitated to assert that “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.”

This last position, however, is undeniable. If they never came in, they cannot well go out. But our letter-writer has done nothing to convince us that the right does not exist. He, with many others, supposes that the doctrine of the sovereignty of the States has something to do with secession. He, however, thinking that he cannot make mistake in decrying it, because the Southern party have upheld it, falls unhesitatingly upon the old I

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Confederation, because it expressly declared that the States composing it were sovereign. But he does not see that by its terms it was to be “perpetual,” one of the qualities he claims for the present Union, that no State could secede without the consent of all the others, and that it has never been repealed. Whereas the perpetuity of the new Union is neither expressed nor implied. On the contrary, three-fourths of the States may constitutionally and rightfully secede or dissolve the Union. They may secede by amendment expelling the other fourth; or they may dissolve by declaring the instrument at an end, in the manner prescribed by one of its own clauses. We have said that the “Articles of Confederation” had not been repealed. The new Constitution does not name them nor refer to them, except in the most distant manner, in the words to “form a more perfect Union.” They have been amended, indeed, and great additions have been made to them; but so far as they are consistent with the-present Constitution, they still retain their force. Constitutions and treaties are to be construed like statutes, and the rule respecting these is, that “old statutes must give place to new where they are contrary, but where there is a seeming variance between two statutes, and no clause of 32

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33 non obstante [repeal] in the latter, such construc tion shall be made that both may stand.” 11 Reps. 56; Dyer, 347. And, “by repealing of a repealing statute, the first statute is revived.” Jacob’s L. D. So that if the present Constitution should be repealed by an amendment, the old Confederacy would revive. Suppose that it had been revived when the present rebellion broke out. The seceding States would then be breaking the “league” which bound them all. They would be rebels or foreign enemies, according as the Confederacy was more or less of a sovereignty over a sovereignty. They would be warred on or not, as expediency might dictate. Practically, the result would have been the same. Political passions, stimulated by material interests, are ungovernable. War must follow secession, whatever the Constitution may say, sooner or later, unless human nature should be changed. But the cause of the war lies much deeper than secession, State-sovereignty, or any other of the supposed causes to which it is publicly attributed. The probably irremediable evil which causes our troubles, is universal suffrage. The framers of the Constitution well knew that, up to their days, dema goguism had been the destroyer of all free republics,

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34 and they foresaw the dangers with which their own work was threatened by the same agent of destruction. They feared a war of classes, and they hoped, with doubts, that the great and sovereign powers reserved by the States would prove a sufficient check to the powers of the General Government. They feared also that the greater States getting possession of them might use them against the smaller, and they meant to leave to these facility for resistance. They dreamed, but hardly supposed, that there might be a war of sections, but took little heed. They did not foresee the sensation press; that the day would come when the demagogue would address the multitude, not only in the forum, but would follow them to their firesides and accompany them in all their daily walks. Universal suffrage, with the sensation press grafted on it, is the real cause of the war, and the civil war foreboded by MJacaulay, has long anteceded the period prophesied by him. A cheap press, almost every one would have said, would be the best diffuser of knowledge and defender of liberty; but extremes meet, and the public mind has been besotted, and public liberty, such as it is, is endangered by the very agency which was expected to enlighten and protect. A little learning may, perhaps, not be a

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dangerous thing; but certainly the daily and hourly inculcation of falsehoods, whether flattering vanity or fomenting hatred, or with or without any other fixed object, must becloud the public mind and impair its common sense. In our opinion, the Americans have less judgment, particularly in political matters, than any nation in Western Europe. The melodramatic style of the sensation article we have been discussing prevails widely in the American press, and is well adapted to the condition to which it has reduced the American mind; showing, as it does, how words may be made effective in clouding the mind, how sentiments may be boldly set side by side with facts which utterly bely them. Nothing more common in the newspapers than authenticated details of the most hateful corruption; and yet, in the very number, perhaps in the very column, which contains it, you will find some rant about our Government being the “purest and best that the sun ever rose upon.” Some newspapers have had the audacity to use similar phrases even since the exposition of the shoddy business. That, however, was not an unusual occurrence in the “purest government,” etc., but attracted special 35

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36 attention only by reason of the excitement of the war. Whether the Union can be permanently reconstructed as a republic, this generation will not be permitted to see. Whether, for the first time in the history of mankind, a democracy is to change into other than a monarchical despotism, lies hidden in the dark future. MAGNA CHARTA. I I

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