CO Cm THE THEOEY OF OUR NATIONAL EXISTENCE, AS SHOWN BY THE ACTION OF THE GOVERNMENT OF THE UNITED STATES SINCE 1861. JOHN C. HURD, LL.D., AUTHOK OF "THE LAW OF FREEDOM AND BONDAGE IN THE UNITED STATES." "Etenim si incertam vocem det tuba, quis parabit se ad bellum? " Epistola Pauli ad Corinthios, prima: cap. xiv. vers. viii. OCT 1C No.. BOSTON LITTLE, BROWN, AND COMPANY. 1881. \\ Copyright, 1881, By John C. Hurd. University Press: John "Wilson and Son, Cambridge. DEDICATED IN HOMAGE SOVEREIGN: WHOEVER HE, SHE, OR THEY, MAY BE. INTRODUCTION. The remark is attributed to Paley that it is much harder to make men see a difficulty than to make them understand the explanation of it. Mr. Walter Bagehot, a writer on the English Constitution, in referring to this as a shrewd observation adds: " The key to the difficulties of most discussed and unsettled questions is commonly in their undiscussed parts. They are like the background of a picture, which looks obvious, easy, just what any one might have painted ; but which in fact sets the figures in their right position, chastens them, and makes them what they are." Mr. Bagehot applies this to the difficulty of under- standing parliamentary government, especially in Eng- land. I think the observation is equally applicable to the discussion of political questions in America. The disputes which have been going on here, ever since the formation of a government independent in respect to the rest of the world, may be due to our failure to bear in mind some circumstances attending all political existence, which must precede, in the order of being, those which we ordinarily consider both fundamental and peculiar to our- selves. If this is the case with us, I should state the inquiry of which the discussion had been omitted as this : How do we know our political existence to be a fact ? VI INTRODUCTION. Dr. Brownson, in his " American Republic " (p. 2), has perhaps expressed the same thought more elaborately when he said : " Among nations, no one has more need of full knowledge of itself than the United States, and no one has hitherto had less. It has hardly had a distinct con- sciousness of its own national existence, and has lived the unreflective life of the child, with no severe trial, till the recent rebellion, to throw it back on itself and compel it to reflect on its own constitution, its own separate exist- ence, individuality, tendencies, and end." It appears to me that all our political writers, without exception, have started with the idea that we have no business to have any self-consciousness, or to ask ourselves such a question as the above. They seem to assume that in this country, if in no other, the existence of political facts is not determined by the observing intellect employ- ing the bodily senses, but by knowledge of certain princi- ples of morals. They seem to take for granted that here at least, if nowhere else in the world, not only does that political fact exist which ought to exist, but it exists simply because it ought to exist ; or that all they have to do to prove its existence is to show that, if it existed, it would agree with certain principles of morals. During the sixteenth and seventeenth centuries a form of political instruction was popular which was followed by Sir Thomas More in his " Utopia," by Harrington in his " Oceana," and b}^ other English writers in works less well known. These were avowedly inventions, fictions, describ- ing, as if they were facts, what the writers thought would be facts if facts were what they ought to be. The method of these writers differed from that of Plato, in his dia- INTEODUCTION. Vll logue on The Republic, only in this, — that Socrates and his friends were there imagined as discussing things as they wished they might be ; while these writers spoke of their fictitious republics as actually existing. Nearly all descriptions of American political institutions seem to me to have partaken something of the character of these Utopian dreams. The conception of a political philosophy as peculiar to the inhabitants of this country, and providentially designed for them in advance, has not been confined to any particular party or parties, school or schools, or to the residents of any one part of the country more than to those of another part. All American publi- cists may be seen, more or less plainly, endeavoring to prove the existence of matter of political fact in this country by arguing that such or such a state of things ought to be the existing fact in this country. The cause of this may be traced further back than the Revolution of 1776. It may be said to have been a natural outgrowth of the circumstances attending the colonization by Englishmen of vacant territory under the political dominion of a sovereign separated from them by an ocean not then so traversable as to-day. They had left England at the time when, as Hume says, plans of imaginary republics, like those of Harrington and More, were daily subjects of debate and conversation ; and, under the cir- cumstances in which they found themselves, the reason- ings of the individual colonists on the abstract right or propriety of all political arrangements seemed not only to precede the exercise of any visible political authority, but also to be the cause of its recognition. This aspect of political existence was heightened by the effect on personal viii INTEODUCTIOIsr. character of the motives inspiring the early colonists of New England, and of those ideas of the relation of gov- ernment to religion which we associate with the term " Puritan." This habit of thought on questions of political existence received fresh strength during the eighteenth century from the influence, both in Europe and America, of contempo- rary French authors, whose theoretical method was essen- tially the same. It had general ascendancy up to the period of the Revolution of 1776, when it became formu- lated in the Declaration of Independence. For the words of that instrument assert, substantially, that the thirteen colonies are, that is, are as matter of fact, States indepen- dent of Great Britain and the rest of the world, because there is some moral law in existence by which they ought to be so. I have said that this method of demonstrating political existence has continued to be illustrated by American statesmen and political writers generally, since the Revo- lution, not being characteristic of one class or section more than another ; but for my present purpose, in intro- ducing this essay, it is chiefly noticeable as it appears in the writings of those who have more especially represented opinion in the Northern States. It appears to me that Kent and Story, with others who have recently succeeded to their position as teachers of public law, to say nothing of many jurists on the bench, have written and spoken of our actual government as if it was their duty, above all things else, to exhibit it as agreeable to some principles assumed by agreement between themselves and their readers to be just, and to INTRODUCTION. IX have thought that no political source of public law could be recognized as an existing fact, unless its accordance with what they personally would regard as goodness of political design could be demonstrated. These writers, as a class, seem to ignore the fact that, in every country in the world, there must be somebody in existence whose measure of right everybody else must accept as the rule of action before there can be any pub- lic law at all; or they conduct their demonstration as if they had shown that there was actually an exception, as to this general condition, in the case of this country. So far as they have recognized this condition, in respect to this country, it has been by putting a hypothesis in the place of the fact. A fact is known by the observing intellect, aided by the bodily senses, as existing, whether in the judgment of the moral sense it ought to exist or not. The hj^pothesis in this case is framed to agree with the framer's a priori notions of political right. As a consequence of this method of treating the subject by our professed guides and instructors, an idea appears in all our political controversies, as conducted in represen- tative assemblies, on platforms, or by printed publications, that there is no fact of a political nature, as distinguished from a legal nature, to be ascertained at all ; or that we must regard as a fact that which is only an opinion, sup- ported "^y some moral considerations. And, as political obligation k not distinguished in idea from obligations enforced only by """he individual conscience, so, in close connection with this sort of philosophy, is the practical result that the obligation of law is referred to the consent of the individual. X ESTTKODUCTION. Americans have, indeed, the reputation of being a more law-abiding people than the populations of other countries. This may be well deserved, if law is regarded only as a rule corresponding more or less closely with ordinary ideas of justice. Equality of condition and extension of average intellectual education have accustomed a propor- tionately larger number to recognize law, in its moral aspect, and to appreciate the general advantage of its being obeyed. But when the question is of obedience without refer- ence to its approval by the moral sense of those to whom the rule applies, that is, when law is presented as the rule of action given by some political superior, there is here, as in no other country in the world, a feeling that, for us, laws exist without reference to the will of any such supe- rior, and therefore cannot have binding force for any such reason. The consequence is that Americans are almost destitute of the ideas of loj T alty and allegiance, and do not conceive of rebellion, treason, and civil war as they are appre- hended in other countries. The civil war of 1861 has always been, for this reason, an astonishment and a puzzle to the people of the North- ern States. They looked upon the action of the people of the Southern States as presenting only a question of morals. They have never been able to see that the contro- versy was not about obligations under law, regarded simply as a measure of right and wrong, but was one about political obligation in reference to a fact ; and that this was an entirely distinct matter. It is in view of these considerations that I here make an INTEODTJCTION. XI admission which may seem a singular introduction to these pages, — that is, that the title selected is actually a misnomer. It is not unlikely that on glancing over a few pages the reader would make the observation for himself. The name " theory " suggests the treatment of a subject, by starting from some principles, assumed or admitted, with the pur- pose of arriving at some conclusion presented as a deduc- tion from those principles. A theory so framed, by reasoning a priori, is, however, precisely the opposite in its nature to that treatment of the subject which I have herein attempted. It is indeed not a theory, but a fact, which is here the object of the investigation. The term " theory " may, how- ever, be conveniently used to designate a generalization from a number of facts which are the particular instances for the generalization. An induction from such instances, rea- soning a posteriori, gives a result which, though essen- tially a fact, may for convenience be called a theory. So it is common to speak of the mutual attraction existing between all material substances, which is commonly called the attraction of gravitation, as a theory ; meaning a fact described by generalizing a number of particular instances, such as the fall of an apple to the earth. It is a theory as identified with a fact, not a theory as distinguished from a fact. It is only in this sense that I call national existence a theory. I have conducted my inquiry on the supposition that the existence of a nation as a political being may be known by generalizing certain actual events, regarded as exhibitions of political force or energy, in the hands of some actually existing human Xll rNTKODUCTION. beings ; which events are to be accepted as facts, because nobody can help accepting them as facts. With such a conception of the proposed investigation, it will be seen that I have no political philosophy or doctrines of political ethics to set before the reader as axioms to be accepted in determining the existence or non-existence of the facts, even as political facts. Indeed, the negation of the necessity for such doctrines may be regarded as the only axiom on which the investigation is founded. But, in view of what has already been said as to the prevailing method of considering political subjects in this country, I anticipate that there will -be some persons whose first objection to any conclusion here presented will . be founded on a rejection of such an axiom. There may be some who do not propose to recognize as political facts any facts which do not conform to certain a priori doctrines, or who will insist that the acceptance of the political fact must depend on its conformity to certain pre- existing laws, principles, or ideas assumed to be just or in accordance with certain principles of justice. I shall not dispute with such readers whether anything we call a fact can be settled by any such method. All that is material for me to say about it is that such a method is not the method here followed. The only argu- ment I propose to give to show the folly of such a method is to produce the results of a method entirely opposite ; as is herein attempted. If the arrangement of the material forming the bulk of this essay may be justly criticised for want of system or of logical continuity, I still claim that the purpose to proceed by way of induction from a variety of particu- INTRODUCTION. Xlll lar instances or examples may give sufficient unity to the whole, in spite of such a lack of formal connection between the several parts. As further explaining the method, or want of method, of the whole, it may be excusable for me to mention that by far the larger part of the material has been put together since the first and second chapters were in type, in the summer of 1879, when it was proposed to make of the whole only a pamphlet of one hundred and odd pages, from matter which had originally been prepared as a review of the political doctrines announced in one or two official papers, and in some judicial opinions then recently pub- lished. As the object of inquiry presented itself more distinctly as a political fact, its relation to judicial opinion, and to all that class of opinion usually called "authority," devel- oped in a different light. It was apparent that the ques- tion of the existence of such a fact could not be a legal one ; that is, that it could not be settled by the judicial function, nor by the judgment of any person in official sta- tion of any sort. But it was seen, at the same time, that judgments of courts of law, if they are actually carried into execution, are acts of government, which must be accepted as indications of the existence of the political fact that somebody actually exercises power over others. Viewed in this light, the cases decided by the courts stand in the same relation to the political truth which is the object of search, as do the acts of officers of other depart- ments of a government. All these, as events which have actually taken place, are more material for indicating the location of political force than any juristical opinions can be. XIV INTRODUCTION. From this point of view the action of the several depart- ments of the Government is equal in political significance. Each act of government has political value, and the larger the number of the particular instances, and the greater the variety, as far as the nature of the inqui^ admits, the surer should be the basis for the induction of the polit- ical truth. It will be seen that the later portions of this essay are based more distinctly upon this idea. It is to be borne in mind that the principle followed in this inquiry is to accept evidence from any possible source, but to pay no regard to any opinions as "authority" for settling the question of fact considered. There is no appeal made to great names, as if the opinion of any man or men, however wise or prominent, could decide the ex- istence of a fact, even of a fact occurring in their own day, to say nothing of facts which took place before they were born. The statements of persons living or dead are quoted, so far as they are quoted at all, as testimony on the question of fact, — a question of history, so far as it is past fact in distinction from present fact. But, being only tes- timony, all such statements are freely compared with evidence from every other source. I think it may be said with truth that the desultory and informal method of inquiry here followed is in accordance with the actual process by which all political existence is apprehended by the bulk of those who are concerned to ascertain it. It may be that it is not the manner of the scholar's private study, nor that of the professor's chair. It is not asking for knowledge ex cathedra. But it is in this manner that the mass of mankind at all times and in all countries become aware of the existence of INTRODUCTION. XV those political facts with which they must agree to live, if they choose to live at all. It is the way in which polit- ical authority becomes known to those who move in the ordinary walks of life, whether they are concerned with that authority in the every-day relations of peaceful soci- ety, or in the crises of war, foreign or domestic. In any case the knowledge is acquired in the forum, on the market-place, by the fireside or at the tavern, by talking over with other people events which actually take place. Let us imagine some intelligent traveller finding out some country previously unknown to the rest of the world : whatever other objects he might have in view, his first necessity would be to discover the person or persons whose will was there obeyed by the mass of the population, or who held so much power among them that his own life, security, and liberty of action would depend upon his or their disposition towards himself. It might be that the traveller came with a special purpose to learn the laws by which the action and mutual relations of the inhabitants were regulated. Whatever amount of verbal information he might receive on this point, or however extensive his personal observations of their manners and daily lives, he would not think that he could affirm the existence of any laws regulating their intercourse until he had found out some person or persons whose actual force and will could be traced as a cause securing obedience to such laws. In making this inquiry the supposed traveller would re- ceive all statements on the subject made in apparent good faith, but he would constantly compare them with any ex- hibition of actual force or power which might come under his own personal observation. If he should discover cer- XVI INTRODUCTION. tain persons, not themselves under the command of any other, whose injunctions were actually obeyed by all other persons, or who actually punished all others, at their own discretion, for disobedience to their injunctions, and who, when their power had been resisted by force, had actually overcome such resistance by their own superior force, he would conclude that the power to maintain their will as law was actually in the hands of such persons, whatever verbal information to the contrary he might have re- ceived. We may imagine the supposed traveller as a modern newspaper correspondent commissioned to report to his employers, for the public at home, the character of such a newly discovered nation. This public at home would read his letters as a report on a matter of fact. Whatever might be his views of the nature of government in general, of the rights of man as a political animal, or at whatever school or college he might have been educated on these points, this public would not expect to learn anything from him on those topics. If, instead of describing what he actually saw, he should send back his views as to what laws and institutions would-be beneficial to the country he was exploring, or if he should be detected in repre- senting the state of things there as if it proved the correct- ness of his own theories of political existence, his emplo3^ers would let him know that he might benefit the public in that way as well by staying at home, and that it was not for any such purpose that he was commissioned as a trav- elling correspondent. Whatever might have been the ideas on the nature of government in general accepted at home, the supposed trav- INTRODUCTION. XV11 eller would not assume that such ideas were equally ac- cepted in the place whose institutions he was to observe. However secure or pleasant he might have regarded his position in a county where such ideas had been accepted by the possessors of power, he would not depend upon such ideas as sufficient to protect his life, person, or prop- erty in the strange land he was exploring. Even if he had sought the country in question as a political apostle, filled with zeal to spread by persuasion ideas which he thought best for the government of all countries, he would address himself to finding out what persons were so placed that the influence of such ideas depended on their assent to or their adoption of them, in action. But however ready he might be to recognize the exer- cise of power as a fact, the traveller would have some preconceived notions as to the nature of the power whose possessors he wished to identify. These notions would be founded upon his previous knowledge of the necessary con- ditions of human existence. Whatever he might hear and whatever he might see, he would know that it could only be human will and human intelligence which could direct the power when manifested ; that, if it was any power at all, it was the power of human beings. The people among whom he sojourned might point to some sacred grove, whose leaves whispered to the reverent ear ; or lead him to some cavern, in whose vapors a priest raved in ecstacy ; or show him some block of stone or metal, said to be fallen from the sky, which gave a hollow sound under- stood by a privileged few ; and they might assure him that these sounds, utterances, or whispers directed what was to be done and what was not to be done. But what- xviii raTRODTJCTiOjsr. ever deference the supposed traveller might have been obliged to yield to similar pretensions in his own country, he would, in the strange land where he came as an ob- server, look to those who served the idol, occupied the cavern, or possessed the grove as the real holders of the power to govern. Or the traveller might have found a people using a writ- ten language, who might show him inscriptions on stone, brass, wood, parchment, or paper, and tell him that these monuments were the rules by which alone every person in the land acted or refrained from acting; that these inscrip- tions were themselves the power he sought, and the only holders of the power. But if the traveller came from any other country than the United States he would still look about for a human agency, a human intellect interpreting the meaning of the words, and a human will and force com- pelling obedience to that meaning, and would ascribe the authority of these written monuments to those who were visibly uncontrolled in executing the injunction or leaving it unexecuted. Or the traveller might be told that, in that country and among that people, the person whom he sought was not to be found, because the force or power of which, as he supposed, some persons must be possessed, did not there exist. He might be informed that in that country every- thing that was done or left undone was so done or left undone by the will or consent of the several persons by whom, as the actors, it might be so done or left undone. This people might say that, while their written monu- ments described or defined the relations of individuals to each other, there was no force giving effect to these provi- INTRODUCTION. xix sions, as law, because the consent of the individuals whose relations were so described or defined was sufficient to maintain the existence of such relations. The traveller might, at the same time, observe persons who were suffering penalties for transgressing the pro- visions of these laws, and some who, at the instance of others, had been subjected to coercion in respect to their relations to these others ; and he might be told that these penalties were borne and this coercive action took place only by the consent of the individuals affected by them. Or the traveller, while sojourning among this people, might witness a war in which millions of this people had risen in arms, with the declared intention to nullify or make void, as to themselves, the public relations defined or described by the written monuments, or so-called laws ; and he might be told that the sacrifice of life, disaster, and final defeat suffered by these millions, followed by the un- restrained action of the other party to this war, were an illustration or evidence both of the fact that all public rela- tions in that country rested on the consent of the individ- uals affected by such relations, and of the inherent potency of the written monuments to maintain their own pro- visions ; and, moreover, as a proof of the absence of any such power-holder as he had made the object of his vain inquiry. What opinion the supposed traveller might have of this testimony would depend, perhaps, very much on the place of his nativity. He might at any rate be able to tell the supposed people that they were not, as they might have imagined, the only nation in the world glorying in such conceptions of itself ; that, to his knowledge, the people XX INTRODUCTION. of the United States of America had always contended that this was precisely their own position. Like the supposed traveller, I have regarded myself bound to search for a fact. I have, then, no political philo- sophy to offer, by which the existence or non-existence of observed facts should be judged ; nor do I propose to argue for the existence of political facts from the existence of other facts which are not political facts. I do not pro- pose to show, from principles assumed a priori, what poli- tical energy has been actually exhibited here hy human beings ; nor do I propose to show the same thing by con- clusions as to the necessary result of conditions of soil and climate, the relative situations of seas, rivers, mountains, and other geographical phenomena. As I have no principles of political philosophy to start with, I do not propose to use any observed facts as illustra- tions to prove the merit or demerit of any such principles. That such a method of testing political principles is a proper one, and that it offers a subject worthy of the severest study, I readily agree : but it is not the subject here considered. Yet, without having any preconceived political theories to start with, by which to judge of the existence or non- existence of observed facts, it is still necessary to have some definite idea of the object of search. I am prepared to recognize any existing political fact, as a fact. But, in searching for a fact, something in the nature of a definition of the fact sought is required. This I propose to give here as definition, in distinction from doctrine. Though I am aware that some will say that such definition is doctrine, I am obliged to state it as definition, or as propositions INTRODUCTION. XXI which need no proof, because I know of no proof that can be given. I conceive that wherever human beings exist in society, some of them do, as a matter of fact, exercise a power over others, — a power operating more or less visibly, in some form, quite distinct from the merely casual exercise of superior force and cunning exhibited by brute beasts towards each other. It is an intelligent exercise of power ; the power is consciously exercised by some in respect to others, who are conscious of its being so exercised. The power so exercised is voluntary or autonomous in the hands of those who exercise it. It is to be recognized only as it is so exercised voluntarily or'independently of control by any other holder of similar power. The power so exercised is limited only by conditions of physical existence. Those who hold it, being creatures of a moral nature, are under the obligations of a moral standard of action, imposing duties on them in the exercise of the power, which duties they may recognize more or less dis- tinctly. But the obligations imposed are not imposed un- der the power in question, and the possession of the power, as a fact, is determined independently of the observance of the obligation. Those who hold the power are not respon- sible under any power of the same sort, even so far as they are responsible at ■ Compare ante, p. 282. » Ante, pp. 385, 386. 404 THE PLACE OF SOVEREIGNTY. ' Political Basis of the Elective Franchise. view of the written Constitution as law, equivalent to a begging the whole question. As the public law of this country had been before this legislation, it was solely as a citizen of a State, and from the exercise of the so-called "reserved" powers of a State, that any inhabitant of the United States had any " elective franchise." The word " citizen " was a "word having two well-known, but distinct, meanings. So far as it signified a person holding that po- litical right, or franchise, that sense was not included in the meaning of the term " citizen of the United States," whatever may have been the idea attached to that term. But that sense may or may not have been included in the meaning of the term " citizen of one of the States." The right to vote, even for President and members of Congress, belonged to any citizen only as he might be the citizen of one of the States. For corroboration, if necessary, of this I refer to Mr. Pomeroy, as one of the most pronounced adherents of the theory that the Constitution rests on sovereignty held by the nation as a mass ; 1 that the general government alone represents such nation, and that this inability of this gov- ernment to create the electoral body, upon which its own continuance depends, is " an anomaly." In § 207 of his " Introduction," etc., 2 Mr. Pomeroy says : — " Here we perceive that the general government has no voice in deciding who shall be privileged to vote for Representatives in Con- gress. The whole subject is controlled by State laws." And in § 208, — 1 Ante, p. 114. 2 The citations are from the fourth edition, published 1879, the preface being that to the third, dated August, 1875. The author treats the subject at some length, §§ 205-216. That he has made no alteration of his text in consequence of the Fourteenth and Fifteenth Amendments appears from (Appendix) § 761, of the fourth edition. THEORY OF OUR NATIONAL EXISTENCE. 405 Political Basis of the Elective Franchise. " This fact is a complete answer to the somewhat common notion that United States citizenship implies the right of voting. Nothing can be further from the truth. Not a vote is cast, from one end of the country to the other, by any person in virtue merely of his being a citizen of the United States." x One may appeal to an author in the character of a jurist and expositor of constitutional law as it is, without being obliged to defer to his opinions as political philosopher, or guide as to what the constitutional law ought to be. In the course of his discussion of this subject Mr. Ponaeroy says, § 211, — " It is certainly, however, an anomaly that the general govern- ment of the United States should have no control over the choice of its own delegates in Congress ; that it should be powerless to define the qualifications of congressional electors. It must be conceded that this is a defect in our organic law which needs amendment ; it was an unnecessary and unfortunate concession to the theory of state sovereignty and independence. One code of rules should certainly prevail throughout the country to regulate the choice of representatives, and this should be the work of Con- gress, or of the people in its sovereign capacity. The nation should dictate in the selection of its own legislators. The integrity of the separate States is sufficiently guarded by allowing to each an equal voice in the Senate, and by permitting them to appoint Senators and to control the selection of Presidential electors ; the more national branch of Congress, that which comes directly from the 1 Mr. Pomeroy's note to § 209 is of special interest, as giving some indi- cation of the author's conception of the theory of the Reconstruction measures. Referring to the exclusive power of the States over the elective franchise, he says, " I need hardly say that I am speaking here of those States alone which remained true to the Union, and which have voluntarily acted upon the question of suffrage. I do not include those States which attempted to secede, and upon which Congress is now imposing universal suffrage." He might have added, While Congress is at the same time " imposing " on them the exercise of their power, as States, to adopt Amend- ments binding on all the States. (Ante, p. 256, n.) As to State continuance, Mr. Pomeroy, in (Appendix) § 762, declares his agreement with Chief Justice Chase's doctrine, whatever that was, in Texas v. White. Ante, p. 9. 406 THE PLACE OF SOVEREIGNTY. Political Basis of the Elective Franchise. people, should be entirely under the management of the one body politic which is represented in the general government." * As I understand the word anomaly, it cannot be applied to a fundamental fact, or to a condition in the existence of anything which would not exist at all, if such fact or con- dition did not exist. A naturalist may think it " unfortu- nate and unnecessary" that the animals called quadrupeds have four legs, instead of having five or three, or that a dog wags his tail, instead of the tail's wagging the dog ; but, as natural philosopher, he would hardly call these " anomalies." That Mr. Pomeroy, as Judge Story had found before him, 2 should find this fact in the political existence of the republic a very inconvenient one for his a priori theory of " a nation," is natural ; but that does not make it " an anomaly." The fact is merely one in a connected array of facts which shows that sovereignty never has been held by the nation or people, as a mass, as Mr. Pomeroy and Judge Story assumed. The whole Con- stitution may be called " an anomaly " in view of the same theory. 3 Whoever professes to expound a constitution, as jurist, should expound it as matter of existing fact, whether he likes the fact or not. As citizen, he may do what he can to change it, by argument ; or by force, if he prefers; tak- ing the responsibility, as John Brown did, with his musket at his shoulder. If there are such persons as " delegates in Congress," 1 Compare ante, pp. 840-345, as to consequences of a supposed revolu- tionary change. 2 See ante, p. 402. 3 By the same theory, as presented by Falck, through Mr. Pomeroy (ante, p. 114, n.), all the governments that ever existed, or that can exist, were and will be anomalies. Mr. Bateman, in treating this subject very clearly and fully, as a question of revolutionary change, in his work on the Political and Constitutional Law, etc., on p. 250, has given special atten- tion to Mr. Pomeroy's logic in this instance. THEORY OF OUR NATIONAL EXISTENCE. 407 Political Basis of the Elective Franchise. they are certainly not delegates of Congress ; not delegates of the body which, as delegates, they compose ; much less can they be delegates of the government of which, as such body, they form a part. The author's theory blinds his perception of the fact that the provision which he calls " an unnecessary and unfortunate concession to the theory of state sovereignty and independence " could not be such a concession : simply because its existence as part of the Con- stitution depended on the will of those persons who held such " state sovereignty and independence," as the political peoples of States in Union ; and that, if such persons had not chosen so to act, there would have been no " conces- sion " and no constitution. 1 The nation has always had "the choice of its own legislators." Because, except as there were States in union, to hold all the power of legislation that could be held, there was no nation. The House of Representatives is no more national than the Senate, or the President, or the judiciary ; and all together, as the general Government, are no more national than the State governments, because all are equally necessary to a national existence. Even the new Amendments have not changed this. If, merely in consequence of these Amendments, there is now a citizenship of the United States in a new sense of the term, the right to vote is not a characteristic of such citi- zenship. 2 But the argument, in the opinion of the court in these Election cases, is founded on the assumption that, in vot- 1 These fundamental facts were what Story was obliged to reconcile him- self to, as "matters of regret, and dictated by a controlling moral or political necessity." Ante, p. 396, n. In the professor's argument, as in that of Story and so many other jurists, the Constitution is imagined as the cause of its own existence and continuance. Compare ante, p. 95. 2 Probably there are some who have a different opinion on this point. For illustration, compare an article by Senator George F. Edmunds in North Am. Rev. for January, 1881, p. 26. Also ante, p. 246. 408 THE PLACE OF SOVEREIGNTY. Political Basis of the Reconstruction Measures. ing for persons to make any representative government, the citizen exercises a power winch that government must have a right to protect as if it were a right derived from that government. This was one among the confused mixture of ideas brought out to support the Reconstruction measures, when " lo}'al " citizens, that is, citizens who were opposed to the secession of their own State, were to be discriminated as the proper constituents of the State, and, as such, to be maintained by the general Government in the exercise of the elective franchise for the benefit of such Government. 1 In its historical associations, this legislation relative to the exercise of the elective franchise is part of the Recon- struction measures, and the construction of the constitu- tional provision by the court in these cases is founded on the same general theory upon which the whole Recon- struction policy of the Government was based : that is, that the Government, by the necessity of maintaining itself as a sovereign, must have the power to treat States in the Union as owing duties to itself, and that the fulfilment of such duties can at any time be enforced by the general Government, by its direct action upon the political people of the State. The larger portion of the Reconstruction legislation has been popularly regarded as directed only to the circum- stances of seceding and belligerent slave-holding States. But this part of that legislation, and the opinions of the Supreme Court in these cases, disclose the fact that the power exercised in those measures, if it existed, still exists, and exists without any reference to the previous political action of a State, and that the power to compel States in the Union to continue the existence of the general Govern- ment is logically and consistently regarded as one to be 1 Ante, p. 252. THEORY OF OUR NATIONAL EXISTENCE. 409 Effect of a supposed Change. employed at the discretion of the general Government against any and every State. I have here noticed Mr. Porneroy's development of his own political theory, in connection with the decisions of the Supreme Court in the Maryland and Ohio Election cases, because, taken together, they show the difference in political importance between all delegation of power to Con- gress (either in the original Constitution or an Amendment) over the private relations of the inhabitants of the coun- try, including even those of personal status, and any which transfer to the general Government the power of deter- mining the citizens who shall have the elective franchise. While the States, severally, retain the power of deter- mining their own existence as a political people, there may be States in union, acting by and through the general Gov- ernment, as their agent, and the republic may rightly be called " the United States," though Congress may still exercise more and more of their powers. But whenever the existing " anomaly," as Mr. Pomeroy calls it, is removed, and the general Government determines its own continuance, irrespectively of the will of the States in union, as the Supreme Court, substantially, claims it is its right to do, even now, the States, as political bodies, holding supreme power in union, will have ceased to exist, and have become municipal corporations, under a law, written more or less clearly in the Constitution, but de- pendent for authority on the will of the general or " national " Government. The powers which the corporations, then called " States," will retain will not be sovereign powers ; because all self- maintaining political existence will belong to a " National " government: and division of sovereignty is impossible. 1 1 It has been said of the English, " They have a form of government, but no constitution." When this change takes place, the same may be said of Americans. Congress will, essentially, be in the same position as is the Parliament. 410 THE PLACE OF SOVEREIGNTY. Tennessee v. Davis. Of the same class of cases, that is, cases presenting new claims of power for the general Government as against the States, not founded on the new Amendments, 1 is the case of Tennessee v. Davis, 10 Otto, 257, decided by the Su- preme Court, with the cases last cited, at the October Term, 1879. This case arose on the provisions of Sect. 643 of the Revised Statutes of the United States, which declare that — " When any civil suit or criminal prosecution is commenced in any court of a State against any officer appointed under or acting by authority of any revenue law of the United States, now or hereafter enacted, or against any person acting under or by au- thority of such officer, on account of any act done under color of his office or of any such law, or on account of any right, title, or authority, claimed by such officer or other person under any such law, 2 . . . the said suit or prosecution may, at any time before the trial or final hearing thereof, be removed for trial into the Circuit Court next to be holden in the district "Where the same is pending upon the petition of such defendant to said Circuit Court." 3 In this case, the defendant, having been indicted in the State Court for murder, presented his petition to the United States Circuit Court for removal of the case, under this provision, into that court, alleging that the killing charged as murder was an act of self-defence, he being at the time 1 Ante, p. 870. 2 These clauses are taken from the Act of March 2, 1833, c. 57, sect 8: 4 U. S. Statutes, 633. The history of this Act, passed during President Jackson's administration, is given in the opinion of the court, 10 Otto, 268. 3 This extract from the statute is as given in the caption of the report. The passages omitted are — "or is commenced against any person holding property or estate hy title derived from any such officer, and affects the validity of any such revenue law [this is from the Act of July, 1866, c. 184, sect. 67 ; 14 U. S. Stat. 171] ; or is commenced against any officer of the United States or other person on account of any act done under the pro- visions of Title XXVI., ' The Elective Franchise/ or on account of any right, title, or authority claimed by said officer or other person under any of the said provisions." [This is from the Act of 28th February, 1871, c. 09, sect. 16; 16 U. S. Stat. 438.1 THEORY OF OUR NATIONAL EXISTENCE. 411 Tennessee v. Davis. Opinion of the Court. engaged in the discharge of his duties as an officer in the United States revenue service. The case had thereupon been removed to the Circuit Court for trial of the issue raised by the indictment, and was presented in the Su- preme Court, on the " certificate of division in opinion between the judges of the Circuit Court of the United States for the Middle District of Tennessee." The court sustained the jurisdiction of the Circuit Court, and denied the petition to remand the case to the State court. Justices Clifford and Field dissented. The opinion of the majority was delivered b}' Mr. Justice Strong. Independently of the question of the correctness of the judgment itself, this opinion may be considered so far as it is an exponent of political doctrine. With this object, some of the more striking portions are here noticed, with the preliminary admission that, so detached from the rest, they may give an insufficient view of the court's position. After some introductory considerations the court pre- sents this as the main question in the case (J6. 262) : — " Has the Constitution conferred upon Congress the power to authorize the removal from a State court to a Federal court of an indictment against a revenue officer for an alleged crime against the State, and to order its removal before trial, when it appears that a Federal question or a claim to a Federal right is raised in the case, and must be decided therein ? " Taken in connection with the succeeding portions of the opinion, this passage may be understood as intended to lay a foundation for the position, asserted afterwards, that the question of " guilty or not guilty " in this case was a question arising under the Constitution and laws of the United States, as distinguished from a question under the law of a State, and that therefore the case was one within the judicial power of the United States. But for this the 412 THE PLACE OF SOVEREIGNTY. Tennessee v. Davis. court offers no argument : for the statement of the position is no argument, and this statement is contradicted in other parts of the opinion, where the issue raised in the case is expressly recognized as one to be determined by State law. It appears to be assumed by the court, without any evidence or allegation to that effect, that the issue, in the State court, of guilty or not guilty, would be identical with the question, whether the officer was doing a lawful act in executing the revenue law. It is evident that the case might have been decided in the State courts, on the facts, without the slightest question of the validity of the revenue laws, or of the powers of the revenue officers under them. There was therefore nothing in the case, as it stood, to warrant an assertion that " it appears that a Federal ques- tion or a claim to a Federal right is raised in the case and must be decided." Here, at the outset, it is assumed, as it is indeed more plainly asserted afterwards, that the general Government may, or even should, treat each several State as unfriendly or hostile in exercising the powers which indisputably belong to it as "reserved " powers ; and, further, that, for this reason, the general Government rnay take upon itself the judicial determination of any legal relations depend- ing on those powers, when the persons who sustain those relations are persons having rights and duties under " Fed- eral " law. The court proceeds to say, — " A more important question can hardly be imagined. Upon its answer may depend the possibility of the general government's pre- serving its own existence. As was said in Martin v. Hunter (1 Wheat. 363), 'the general government must cease to exist when- ever it loses the power of protecting itself in the exercise of its constitutional powers.' It can act only through its officers and agents, and they must act within the States. If, when thus acting, and within the scope of their authority, those officers can be ar- THEORY OF OUR NATIONAL EXISTENCE. 413 Tennessee v. Davis. Opinion of the Court. rested and brought to trial in a State court, for an alleged offence against the law of the State, yet warranted by the Federal au- thority they possess, and if the general government is powerless to interfere at once for their protection, — if their protection must be left to the action of the State court — the operations of the gen- eral government may at any time be arrested at the will of one of its members." 1 In these sentences appears again that political doctrine which, taken as axiomatic, has been the foundation of some other opinions of the same court, — that the general Gov- ernment is a government of that nature that it may or must, as a possessor of some sovereign powers, make its own existence its end, and employ any means it may think essential to that end. The citation from Marshall does not, however, support this, because it is therein recognized that, except as its powers may be constitutional, that is, intrusted to it by the law of a political superior, they are not powers of a government. In these sentences of the opinion, it is assumed that any power claimed by the Government in pro- tecting itself as sovereign is " constitutional " power. \ There- fore, the position taken is that the power is not measured by the Constitution, but the Constitution is construed by the assumed power. In these sentences of the opinion, something is again taken for granted which had not been shown by any record before the court, that is, that the act, the character of which the State proposed to judge by its own law, was an act warranted by " Federal authority." But if this was the ground for asserting the jurisdiction of the United States Circuit Court as against the State Court, it was absurd for the Circuit Court to proceed to try the case as an issue of guilty or not guilty under the State law. The Supreme Court had made its decision on 1 Compare a similar expression in Judge Swayne's opinion in the Slaughter House Cases, ante, p. 375. 414 THE PLACE OE SOVEREIGNTY. Tennessee v. Davis. the question of removal, on the ground that the act in question was justified bj the " Federal law." The court proceeds to say, — " The legislation of a State may be unfriendly. It may affix penalties to acts done under the immediate direction of the national government, and in obedience to its laws. It may deny the au- thority conferred by those laws. The State Court may administer, not only the laws of the State, but equally Federal law, in such a manner as to paralyze the operations of the government. And even if after trial and final judgment in the State Court the case can be brought into the United States Court for review, the officer is withdrawn from the discharge of his duty during the pendency of the prosecution, and the exercise of acknowledged Federal power is arrested." Whatever legislation, on the part of a State, was possible was either constitutional or unconstitutional. If the latter, it was simply void as law. But if so unconstitutional and void as law, it could be made so to appear only through the decision of cases as they had arisen in the courts, and ivere, as cases, subject to the national judiciary. As political action, such legislation, so far as the general Government was concerned, was simply null ; that is, the Government could take no notice of it as being either friendly or unfriendly. This may have been an "element of weakness" in the Constitution, that is, a bad political arrangement. But neither the Supreme Court, nor any other branch of the general Government, had any right to give itself trouble on that account. If, on the other hand, the State legislation was constitu- tional, it was for the general Government' to keep its hands off; and all that the judiciary had to do was so to declare, whenever the question should arise in a case at law, what- ever might be the consequences. The court proceeds to enunciate as political doctrine : — THEORY OF OUR NATIONAL EXISTENCE. 415 Tennessee v. Davis. Opinion of the Court. " We do not think such an element of weakness is to be found in the Constitution. The United States is a government with au- thority extending over the whole territory of the Union, acting upon the States and upon the people of the States." x Here, as in some other instances, the court allows itself to found an argument upon a misuse of words ; that is, a use identifying the general Government with those States which, in their union, are the sovereign. In doing this it arrogates to the persons composing that government the character of sovereignty, and denies that character to the several States which in union are "the United States." 2 Whatever may be the record to be left by contemporane- ous history, it was a misrepresentation of past history to say that this government had had any authority whatever, acting upon the States as its subjects. 3 And in continuing : — " While it is limited in the number of its powers, so far as its sovereignty extends, it is supreme. No State government can ex- clude it from the exercise of any authority conferred upon it by the Constitution, obstruct its authorized officers against its will, or with- hold from it, for a moment, the cognizance of any subject which that instrument has committed to it." The passage here cited may seem commonplace enough ; but it is itself contradictory to the position taken in the preceding sentences; for it is an admission that, like the State governments, the .general Government is bound and limited by the Constitution, as law proceeding from some person or persons who are not identified with either of these governments. In offering this truism as its solution, the court has here again, as once or twice before, simply begged the ques- 1 See ante, p. 377, n. 2., Waite, Ch. J., in United States v. Cruikshank. 2 Compare ante, p. 384. 8 Compare ante, Ch. IV. 416 THE PLACE OF SOVEREIGNTY. Tennessee v. Davis. tion, — whether the trial of a charge of murder, under the State's law in the case of a revenue officer, is withholding from the general Government " the cognizance committed to it by the Constitution." It is assumed that the enfor- cing of the simplest law of a State, — the law for the pro- tection of the life of its inhabitants — is hostile, and in conflict with the use of powers granted to the Govern- ment by the States in union, so far as it may apply to officers of the general Government who may be within its territorial jurisdiction. If the judiciary proposes only to carry into effect the Constitution as law, it is bound, as is every other branch of the Government, to take the law as given to it. But in this opinion the court virtually denies that the three branches of the general Government are under law. This it had done already by asserting that they, as a govern- ment, and "the United States" are one and the same personality, while the States are under a law administered by this Government. But the same idea is advanced in another part of the opinion, in which the court has pro- duced an original conception at least, if it cannot, by the nature of things, be a discovery, by making the supremacy of the law, that is, of the author of the law, the supremacy of the agent. After stating, ib. 263-265, its view of the extent of the judicial power, the court says, p. 265 : — " As we have already said, such a jurisdiction is necessary for the preservation of the acknowledged powers of the government. It is also essential to a uniform and consistent administration of the na- tional laws. It is required for the preservation of that su- premacy which the Constitution gives to the general Government by declaring that the ' Constitution and laws of the United States made in pursuance thereof, and the treaties made or which shall be made under the authority of the United States shall be the supreme law of the laud, and the judges in every State shall be bound THEORY OF OUR NATIONAL EXISTENCE. 417 Tennessee v. Davis. Opinion of the Court. thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.' " It is not easy to see what force, as argument on the ques- tion before it, the court could find in this self-contradictory statement, unless it is understood as equivalent to saying that the general Government is identical with " the United States," that is, with the actual sovereign from whom the " Constitution and laws of the United States " proceed, and that, therefore, all its powers are original in itself, as the supreme law-giver, while all others, that is, those held by the States, are held under a law proceeding from those powers, the application of which is to be decided by the judicial function of this Government. 1 The court next proposes to drag in " the founders," with their intentions, even to justify that petitio principii which characterizes this whole opinion : — " The founders of the Constitution could never have intended to leave to the possibly varying decisions of the State courts what the laws of the government it established are, what rights they confer, what protection shall be extended to those who execute them. If they did, where is the supremacy over those questions vested in the government by the Constitution ? If, whenever and wherever a case arises under the Constitution and laws or treaties of the United States, the national government cannot take control of it, whether it be civil or criminal, in any stage of its progress, its judicial power is, at least, temporarily silenced, instead of being at all times supreme." Beyond this surmise as to the intention of " the founders " no argument is offered to show that a personal right, such as the right of self-defence, of " those who execute the laws of the Government," is one conferred by " its laws," 1 This is an illustration of the consequences which have been described (ante, pp. 341-343, 351, 352) as legitimately following from the theory of the Constitution's existing by the will of the nation as a mass, if made good by revolutionary change. 418 THE PLACE OF SOVEREIGNTY. Tennessee v. Davis. or that their " protection " as citizens does not, under the Constitution, belong exclusively to the State. The contrary is indirectly affirmed by the admission, in the close of the opinion, that in the Federal Court the ques- tion of criminality must be decided by the State law. Throughout this opinion, the court presents the divisi- bility of sovereignty as. a fundamental truth: — " The argument so much pressed upon us, that it is an invasion of the sovereignty of a State to withdraw from its courts into the courts of the general Government the trial of prosecutions for alleged offences against the criminal laws of a- State, even though the defence presents a case arising out of an Act of Congress, ignores entirely the dual character of our government. It assumes that the States are completely and in all respects sovereign. But when the national government was formed, some of the attributes of State sovereignty were partially, and others wholly, surrendered, and vested in the United States." l On page 271, after a review of decisions affirming the power to remove cases when a question arises of the validity of a right given by a law of Congress, the court says, — " It ought, therefore, to be considered as settled that the con- stitutional powers of Congress to authorize the removal of criminal cases for alleged offences against State laws from State Courts to the Circuit Courts of the United States, when there arises a Federal question in them, is as ample as its power to authorize the removal of a civil case." The citation of the cases to prove this proposition was entirely superfluous. Here, as throughout the opinion, the court assumes that the character of the. act charged was to be judged by a " Federal " law, that is, a law deriving 1 Why did not the court say, outright — to the Government ? As shown in the fourth chapter {ante, p. 136), the United States were the grantors, so far as there were grantors, and not grantees. The idea of a "partial" surrender of an attribute of sovereignty is a new development in the theory of divisibility of powers. THEORY OF OUR NATIONAL EXISTENCE. 419 Tennessee v. Davis. Opinion of the Court. its force from the powers held by the general Government. But this was the proposition to be proved. And then, on the same page, the court proceeds to con- tradict its own position, by asserting that the Circuit Court will try the case by the law of the State. "The imaginary difficulties and incongruities supposed to be in the way of trying in the Circuit Court an indictment for an alleged offence against the peace and dignity of a State, if they were real, would be for the consideration of Congress. 1 But they are unreal. . . . The Circuit Courts of the United States have all the ap- pliances which are needed for the trial of any criminal case. They adopt and apply the laws of the State in civil cases, and there is no more difficulty in administering the State's criminal law. They are not foreign courts. 2 The Constitution has made these courts within the States to administer the laws of the States in certain cases, and so long as they keep within the jurisdiction assigned to them, their general powers are adequate to the trial of any case." Here, again, it is assumed that the Federal courts are within their jurisdiction in such instances, while immedi- ately the court reasserts the divisibility of sovereignty, and speaks of the powers of the States as " sovereign " : — " The supposed anomaly of prosecuting offenders against the peace and dignity of a State, in tribunals of the general govern- ment, grows entirely out of the division of powers between that government aud the government of a State ; that is, a division of sovereignty over certain matters. 3 When this is understood (and it is time it should be), it will not appear strange that even in cases of criminal prosecutions for alleged offences against a State, in 1 Here is another contradiction. If this difficulty is " real," that is, founded on the Constitution, Congress could do nothing about it. 2 The whole argument had been that the Slates, and especially their courts, were to be regarded as foreign and hostile to the general Govern- ment. But how can one of two parties be foreign to the other, if this other is not equally foreign to the first ? 3 That is, apparently, that there is a division of sovereignty over one and the same subject, or class of relations, in harmony with the expression " partial sovereignty." (Ante, p. 418.) 420 THE PLACE OF SOVEREIGNTY. Tennessee v. Davis. Clifford, J., dissenting. which arises a defence under United States law, the general gov- ernment should take cognizance of the case, and try it in its own courts, according to its own forms of proceeding." While, in this same opinion, the doctrine of the division or partition of sovereignty between the States and the general Government is proclaimed, it is almost in the same breath declared that any of these powers held by the States may at any time be subject, in exercise, to the other sovereign powers held by the general Government. If this can possibly be " understood," it is time somebody should explain. Why should not the court have done this service on this occasion, if the court understands it ? The dissenting opinion, written by Mr. Justice Clifford, occupying pp. 272-301, consists largely of citations from earlier decisions. But it was hardly worth so much trouble to prove a negative ; considering that the proof of the affirmative proposition had fallen to the majority, and that their " opinion " exhibited only a logical failure. In this dissenting opinion (ib. 281) it is said : — " Neither the Constitution nor the Acts of Congress give a revenue officer or any other officer of the United States an immunity to commit murder in a State, or prohibit the State from executing its laws for the punishment of the offender. Unquestionable ju- risdiction to try and punish offenders against the authority of the United States is conferred upon the circuit and district courts, but the acts of Congress give these courts no jurisdiction whatever of offences committed against the authority of a State. Criminal homicide, committed in a State, is an offence against the authority of the State. . . . Matters of fact are not in dispute. . . . Nobody before ever pretended that such an offence ever was or could be defined by an act of Congress as an offence against the Federal authority, — that the Circuit Court or any other Federal Court has or ever had any jurisdiction of such a case to try or sentence such an offender for such an offence." Before the era of Reconstruction, it had been the will of the sovereign (i.e. of the States united), under whom THEORY OF OUR NATIONAL EXISTENCE. 421 The political Question involved. all law existed in tliis country, that, in each State, the citi- zen should, in some relations, be bound by and receive protection from law proceeding from powers intrusted [" reserved "] to each State separately, and, in other rela- tions, be bound by and receive protection from a law pro- ceeding from powers intrusted [delegated] to a general Government. The laws proceeding from the holder of either set of powers might be so framed, or, however framed, so admin- istered, intentionally or unintentionally, as to work a failure of justice in relations dependent on those powers. The persons who might suffer from such a failure of justice, in relations depending on one of these sets of powers, might be persons sustaining relations depending on the other set of powers. The will of the sovereign, however, had been that the holders of these two sets of powers should be reciprocally independent in their use of these powers. The holder of neither set of powers had any right to interfere with the framing or the administration of the laws dependent on the action of the holder of the other powers. Whether this was a good political arrangement, or not, was not a question for anybody but the sovereign to con- sider. For any one else, it was a speculative question ; or was a practical question only as attempted revolution might make it so. Sovereignty was distributed in exercise ; it was not divided in possession. 1 It was the same sovereign who held the powers " re- served" to the States separately, to be exercised by their governments, and the powers delegated to the general Gov- ernment. Hence, the latter could have no right to distrust the 1 Ante, p. 139. 422 THE PLACE OF SOVEREIGNTY. The political Doctrine involved. State governments, as holders of power, much less have any " supremacy " over them. 1 The citizen, under the laws of the State government, was under the protection and the obligations of laws derived from the only sovereign — the States united — as essentially as when under the laws of the general Gov- ernment. This was the fundamental fact ; and the general Gov- ernment had to accept the position in regard to each State government as long as the State was a member of the Union. What consequences to a State would follow from a misuse of the powers " reserved " to it as a State of the Union, or what use should be considered a use inconsistent with its existence as a State of the United States, was a political question, which could not be decided by the exer- cise of any function of the general Government, as organ- ized under the Constitution. 2 This purely political question could be decided only by the sovereign, the person or persons holding sovereignty as a unit by right above law ; that is, by the States, deter- mining for themselves their own identity in union, mu- tually recognizing one another. 3 The general Government, as holder of delegated powers, could not, by its ordinary action under the Constitution, decide this question. 4 Its 1 If either the general Government or the States could claim "su- premacy " over the other, it would be strange that it should be that one which not only professed to be governed by a written law prescribed by the other, as a union, but which had no independent personal existence, being constantly dependent on the renewing action of that other. 2 Unless, perhaps, a "political department " has been developed. Comp. ante, pp. 19, 65. 3 As the original Thirteen had determined the question at the first. Ante, p. 283, n. * In the case occurring in 1861, eleven States had so completely settled this by withdrawing their Senators and Representatives, to say nothing of other action, that, though the theory and its consequences were not then dis- THEORY OF OUR NATIONAL EXISTENCE. 423 The political Doctrine tested. action would commence when the political question had been decided against the continued existence of a State ; when it became territory under the sole dominion of the (other) States continuing in their union. 1 In all the cases which have been cited in this essay the Supreme Court construes the Constitution with the idea that sovereign powers are not so held, as a unit, by the States in union, and distributed to the State governments and a general government, but are divided ; some, as sov- ereign powers, belonging to a general government (or a supposed " United States " or " Union "), 2 and others as sovereign powers also, belonging to the States severally. According to the theory of our national existence main- tained in this essay, there neither was nor could be, in the nature of things, a division of the powers of sovereignty, either between the State governments and the general Government, or between the United States (*'. e., the States united) and the States severally. All sovereignty was held, as a unit, by the States in union, — the United States. 9 The essential importance of the distinction between such a distribution of sovereign powers, and a division of sovereignty (even in theory), appears in the arguments of the Supreme Court, in the cases cited in this chapter, for giving the possessor of one set of sovereign powers (the general Government, or a supposed " United States," or " Union ") the right to control the administration of laws cernerl, the practical course taken was the same as if the other States, in convention, had formally declared that they only were the United States. If the theory advanced in the Election Cases, ante, p. 385, that senators and members of the House are elected as members of a " National " govern- ment through suffrages controlled by the same government, is correct, it would seem to follow that the senators and representatives from the eleven States might have remained in the exercise of their functions until their terms had expired, even while the States from which they had been elected were declared belligerent States as against the government of which they were a part. * Ante, p. 145. 2 Ante, p. 102. 3 Ante, p. 140. 424 THE PLACE OE SOVEEEIGNTY. The Position of the Court in these Cases. proceeding from trie possessors of the other set of powers, — also, by the theory, sovereign powers, — the States. Although it is evident that the argument, from the nature of sovereignty, applies just as much in favor of the powers held by the States, if they are sovereign powers, as in favor of those held by the general Government, it is in the cases here referred to assumed as a doctrine of constitu- tional law that the latter, in view of its own existence as sovereign, must assert the relations existing under its powers at the expense of every other possessor of powers equally sovereign, whenever the relations under each in- volve the same persons. 1 The political doctrine declared by the court in justify- ing its decision in this case, Tennessee v. Davis, — that the general Government, as a superior, may, through laws of Congress, always interfere to prevent the administration of State laws by State Courts, in view of possible conse- quences to persons in the employ of the general Govern- ment, and of possible loss of their services, had no support in the history of this country before the Reconstruction era. 2 Whatever else may be thought of the decision of the 1 The toleration which this assumption has received is measurably ascrib able to a popular idea that those attributes of sovereign rule which create legal relations over a wider expanse of territory, and such as are recognized in international transactions, are grander, more majestic, and more essentially sovereign than those which create such legal relations as exist in all communities, great or small, involving rights and obligations in respect to life, liberty, and property. An illustration of this may, I think, be found in Mr. Justice Bradley's argument for the supremacy of a "national" gov- ernment in the Legal Tender Cases, 12 Wall. 555. (See post, p. 482.) 2 If the personal rights to life, liberty, and property of officers of the general government are to rest upon laws enforceable as if they derived their authority from the "Federal" or "National" government, there is now an introduction, for the first time, into American jurisprudence of laws of personal extent, as opposed to laws of territorial extent, — a system which characterized Europe during the Middle Ages, and is now exemplified in the extra-territorial jurisdiction over foreigners of European race which is still maintained in Japan, China, etc THEORY OF OUR NATIONAL EXISTENCE. 425 No Revolution yet recognized by the Judiciary. court in this case, it, like others hereinbefore cited, 1 proves experimentally the futility of the theory of a division of sovereignty. In this Opinion the theory is asserted, and " supremacy " at the same time claimed, for one of the supposed holders of sovereign power over the other in the exercise of his share of sovereign power. From the opinions delivered in the cases cited in this chapter and others, also relating to the powers claimed by the general Government, some passages might be selected for notice in a political essay as making for that govern- ment those claims which I have pointed out as indicia of that theory which makes it the representative of the nation as a mass, instead of being the representative of the States united. 2 But, without professing to have made an exhaustive examination of all the opinions bearing on our public law in the cases reported in the Supreme Court during the period in question, I think it is safe to say that, whatever inferences as to the future powers of the general Govern- ment maybe drawn from the actual judgments of the court since the war, taken simply as precedents, or whatever expressions as to the position of that government, rela- tivel}'' to the States, may be found in the opinions, it will appear to any inquirer that no positive discrimination of a revolutionary political change has been made by any member of the court. Even from the language of those justices who have gone the furthest in asserting the powers of the general Government as against the " reserved " powers of the States, it will probably be understood that, whatever poli- tical condition the Supreme Court may have accepted as the basis of its decision, they have in all their opinions stated it as one continuously existing from the time of the adoption of the Constitution in 1787. l Ante, p. 301. 2 Ante, pp. 341-345. 426 THE PLACE OF SOVEREIGNTY. The Legal Tender Cases. This appears not only from their own several references to the original formation of the Government, and frequent appeals to the views or intentions of " the framers," but also from their reliance on earlier judicial opinions, and especially on some of Chief Justice Marshall's, as contain- ing the political doctrine on which they rely. The question presented in the Legal Tender Cases, 12 Wall. 457, 1 had no immediate connection with the public or private relations affected by the three Amendments. But the opinions delivered on the rendition of the judg- ment may be noticed in their bearing on the question of a possible revolutionary change, from the fact that the de- cision of the majority sustaining the powers claimed for Congress is, in the opinion of the court, and in Mr. Jus- tice Bradley's separate opinion, based upon a political theory, without any reference to any clauses in the Con- stitution itself, as law, determining the powers of the general Government. It was said in this case by Mr. Justice Strong, deliver- ing the opinion of the court (12 Wall. 531), — " Nor can it be questioned that when investigating the nature and existence of the powers conferred by the Constitution upon Congress, it is indispensable to keep in view the objects for which those powers were granted. This is a universal rule of construc- tion, applied alike to statutes, wills, contracts, and constitutions. If the general purpose of the instrument is ascertained, the language of its provisions must be construed with reference to that purpose, and so as to subserve it. In no other way can the intent of the framers be discovered." 2 1 Decided, December Term, 1870. The opinions given in these cases may also be found in Macpherson's Political Handbook for 1874, p. 40. 2 It may be worth noticing that it is the " intent " or " purpose " of a known person that is sought in all instruments. There is no such thing as the intent of an instrument, of which we speak only figuratively. In ordinary in- struments the intending person is always before the mind. The intent sought in the Constitution is the purpose of those who make it law to-day. The court speaks of it as one might of a testament left by " the framers," THEORY OF OUR NATIONAL EXISTENCE. 427 The Legal Tender Cases. Opinion of the Court. " No single power is the ultimate end for which the Constitution was adopted. It \_i.e., the single power?] may in a very proper sense be treated as a means for the accomplishment of a subordinate object ; but that object is itself a means designed for an ulterior purpose. Thus the power to levy and collect taxes, to coin money and regulate its value, to raise and support armies, or provide for and maintain a navy, are all instruments for the paramount object which was to establish a government sovereign within its sphere, with capability of self-preservation, 1 thereby forming a union more perfect than that which existed under the old confederacy." After quoting Chief Justice Marshall's language, Mr. Justice Strong proceeds to say (ib. 533), — " That would appear, then, to be a most unreasonable construc- tion of the Constitution which denies to the government created by it the right to employ every means, not prohibited, necessary for its preservation, and for the fulfilment of its acknowledged duties. Such a right, we hold, was given by the last clause of the eighth section of its first article. The means or instrumentalities referred to in that clause, and authorized, are not enumerated or defined. In the nature of things, enumeration and specification were impossible. But they were left to the discretion of Congress, subject only to restrictions that they be not prohibited, and be necessary and proper for carrying into execution the enumerated powers of Congress and all other powers vested in the government of the United States, or in any department or officer thereof." And in the same opinion (ib. 545), — as if their individual intentions should operate when they were dead and gone; whereas "the framers" had no more authority in its adoption than any other citizens. Compare ante, p. 296. 1 In the opening sentences of this opinion, 12 Wall. 529, this phrase oc- curs, — "a power possessed by every independent sovereignty other than the United States " : innuendo that the Government and the United States are identical. That the United States, i. e., the States in union, possess all the powers of any independent sovereignty, was the fact. The question was whether they had delegated one of these powers to the government existing under their law. These few words give the key to the whole decision, as is more clearly shown by Mr. Justice Bradley in his separate opinion, post, p. 431. 423 THE PLACE OF SOVEREIGNTY. The Legal Tender Cases. Opinion of the Court. " The Constitution was intended to frame a government, as dis- tinguished from a league or comjiact ; a government supreme in some particulars, over States and people." Sentences of this sort may be found in many earlier as well as later opinions. To say that the government is not a league or compact, as framed by the Constitution, is a meaningless truism, unless it is implied that there was somebody, and is somebody now, in existence, who, by legislating in the Constitution, had placed the States, as well as the individual inhabitants of the States, under the jurisdiction of the general Government. Who this person may have been, or now is, is left to the imagination. Un- less such person can be found, however, the Government cannot have any authority over States, as such, and they remain what they were at the beginning, — possessors, in their corporate capacity, of sovereignty in union. So far as these expressions convey any consistent mean- ing, it is that, by some means or other, a government came into existence which was not merely the agent of a pre- existing and continuing possessor of sovereign power, but a government sovereign in itself, and entitled as such to maintain itself against all the world. In this instance, as in so many others, earlier and later, no recognition is made of an author of the Constitution to whose continuing personal existence and continuing will its authority as law should be ascribed. Powers are spoken of as " con- ferred by the Constitution." There is a recognition that the Constitution was " adopted," and that it was " in- tended." But who those were who so adopted and so intended is not specified, unless by the allusion to " the intent of the framers," who, whatever may have been their personal merits, had no more authority to give to the Constitution as law than the most obscure voter in their day. This is nothing more than a stale presentation of the THEORY OF OUR NATIONAL EXISTENCE. 429 Marshall, cited in the Opinion of the Court. fetish constitution, supposed to operate of itself after hav- ing been once set a-going. In its search for the ultimate object of the Constitution as a means, the court stopped on reaching the Government. But the next question was, What was the object for creating that Government in the minds of those now living persons, whoever they may be, who to-day give to that Constitution all its authority ? 1 The decision of this question of historical fact is beyond the power of any court of law whatever. Therefore, it does not give any argumentative force to such solutions of the political question to cite statements, equally weak and meaningless, which had been made by an earlier judge ; even though that judge was the great lawyer and univer- sally honored citizen, John Marshall. After saying in the same opinion (ib. p. 533), " It was certainly intended to confer upon the Government the power of self-preservation," 2 Mr. Justice Strong cites the language of Marshall, Ch. J., in Cohens v. The Bank of Virginia, 6 Wheat. 414. 3 " America has chosen to be in many respects and to many pur- poses a nation, and for all these purposes her government is corn- 1 Ante, p. 296. 2 The question is, What was the " self " that was to be preserved ? A government which is an agent can have no right of seZ/^preservation inde- pendently of the pre-existence of its principals. 3 In this place Judge Marshall had said, "That the United States form, for many and most important purposes, a single nation has not yet been denied. [In this essay it is held that they form a single nation for all pur- poses.] In war we are one people. [How would the judge have explained the legislation founded on belligerency and conquest in civil war ? ante, p. 175.] In making peace we are one people. [Or explained the recon- struction measures ?] In all commercial regulations we are one and the same people. [Or the Slaughter House Cases?] In many other respects the American people are one, [One people 1 In what sense f] and the govern- ment which alone is capable of controlling and managing their interests in all these respects is the government of the Union. [In what sense of 'Union'? of agent for the United States or of government acting on the States "?] It is their government, and in that sense they have no other. [To whom do ' their ' and ' they ' relate ? To the States united, or ' the peo- ple ' ? ] America has," etc., as above. 430 THE PLACE OF SOVEREIGNTY. Marshall, Ch. J., cited in the Supreme Court. plete ; for all these objects it is supreme. It can, then, in affecting these objects, legitimately control all individuals or governments within the American territory." x In a case where trie essence of the decision was the dis- crimination of living political organisms, it was puerile rhetoric to use a term like " America," which has never had a political use. The question occurs, How can there be a nation which is a nation only for some purposes, and not for all ? It was the States in their voluntary union which chose to be a nation for all purposes ; and for this they had, as matter of fact, controlled all individuals, and all governments within their geographical American territory, including the general Government. Mr. Justice Strong proceeds to cite further from Judge Marshall in the same case (6 Wheat. 887), as follows: — " A constitution is framed for ages to come, and is designed to approach immortality as nearly as mortality can approach it. Its course cannot always be tranquil. It is exposed to storms and tempest, and its framers must have been unwise statesmen, indeed, if they have not provided it, as far as its nature will permit, with the means of self-preservation from the perils it is sure to en- counter." " As far as its nature will permit " is an unfortunate qual- ification in a theory which elevates constitutions into the rank of sentient existences. The honored Chief Justice, in this deification of constitutions, had an advantage over 1 Judge Marshall here adds, " The Constitution and laws of a State, so far as they are repugnant to the Constitution and laws of the United States, are absolutely void. [There was no dispute about this.] These States are constituent parts of the United States. They are members of one great empire, [They were the United States, and they and ' the empire ' were identical] for some purposes sovereign, for some purposes subordinate." [To whom ?] They had in union laid down a law which was binding on the State governments and on the general Government ; giving the judicial de- partment of the latter the authority to apply this law in cases at law. But in this respect the general Government was as subordinate as were the State governments. THEORY OF OUR NATIONAL EXISTENCE. 431 The Legal Tender Cases. Opinion by Bradley, J. his brethren of a later time, by living nearer to that gen- eration over whom the French theories of the eighteenth century had such a power as to allow their belief in the pos- sibility of such things. 1 But the court of our day, in the very act of quoting these words of its great predecessor, has had the sagacity to put living men in the place which he had ascribed to a piece of parchment. Even though it be also an assumption in this instance, this is an assumption more in accordance with the nature of things. It is " the Gov- ernment " which, in the court's opinion, now appears as the self-existent being. The language of Mr. Justice Bradley, in a separate opinion sustaining the decision of the majority, is still stronger than that in the opinion delivered by Mr. Justice Strong, for the Court, in relying on the political theory of a government supreme and self-supporting in its nature. Judge Bradley remarked (12 Wall. 554), — " The Constitution of the United States established a govern- ment, and not a league, compact, or partnership. It was constituted by the people. It is called a government. 2 In the eighth section of Article I. it is declared that Congress shall have power to make all laws which shall be necessary and proper for carrying into ex- ecution the foregoing powers, vested by this Constitution in the Government of the United States, or in any department or office thereof. As a government it was invested with all the attributes of sovereignty. It is expressly declared in Article VI. that the Con- stitution and the laws of the United States, made in pursuance thereof, 1 Ante, p. 315. In this same case, 6 Wheat. 381, Judge Marshall said, " This is the authoritative language of the American people ; and, if gentle- men please, of the American States." This passage exhibits the ultimate weak point of that school which may have been founded on this opinion. A fuel is identified with an hypothesis, though the fact and the hypothesis contradict each other. Marshall could not help seeing that all law was trace- able to the States in union, as fact ; and yet here found a law to act on the States as " subordinate," proceeding from the people, as law-giver by hy- pothesis. Compare notes on pp. Ill, 114. 2 Compare Mr. Webster's " It is called a constitution." Ante, 96 n. 432 THE PLACE OE SOVEREIGNTY. Bradley, J., in the Legal Tender Cases. and all treaties made under the authority of the United States, shall be the supreme law of the land. 1 " The doctrine so long contended for " 2 . . . " The UnitedStates is not only a government, but it is a national government, and the only government in this country that has the character of nationality. It is vested with power over all the foreign relations of the country, war, — peace, and the negotiations and intercourse with other nations, all of which are forbidden to the State governments. It has jurisdiction over all those general subjects of legislation and sovereignty which affect the interests of the whole people equally and alike, and which require uniformity of regulations and laws, such as 3 . . . " Such being the character of the General government, it seems to be a self-evident proposition that it is invested with all those in- herent and implied powers which, at the time of adopting the Con- stitution, were generally considered to belong to every government as such, and as being essential to the exercise of its functions. 4 If this proposition be not true it certainly is true that the government of the United States has express authority, in the clause last quoted, to make all such laws (usually regarded as inherent and implied) as may be necessary and proper for carrying on the government as constituted and vindicating its authority and existence." A plainer statement of the political doctrine by "which 1 Compare Mr. Justice StroDg's argument from these words in Tennessee. Davis, ante, 416. 2 The remainder of this paragraph from the opinion has already been cited, ante, p. 89, n. 2. 3 Judge Bradley proceeds to describe these, and in doing this says (ib. 556), " And the Government is clothed with power to guarantee to every State a republican form of government, and to protect each of them against invasion and domestic violence." I think it is not mere verbal criticism to notice this novel presentation of the guaranty given by " the United States," in sect. 4 of Art. IV. (ante, p. 214, n.), as illustrating an existing tendency to ignore the political sovereign from which the Constitution proceeds, and the fact that the general Government is only an agent, and to substitute it as the only supreme power holder, which gives or withholds republican government at its pleasure. Compare ante, p 342. 4 If it has all the functions of any government it is superfluous to say that it has all the powers necessary for those functions. If its functions are limited, they must be so by some law. That law must have an author, or source. But if the government exists under such a law, it has not any of the attributes of sovereignty. THEORY OF OUR NATIONAL EXISTENCE. 433 The Legal Tender Cases. Mr. Justice Bradley. this and later cases in the Supreme Court have been de- cided could not be desired, and the judge's fellow-citizens owe a debt of gratitude for such an outspoken utterance from the bench. As to the argument, the only possible answer would be that the general Government had not the character here described before 1861, and nobody had shown that it had acquired that character afterwards. Judge Bradley, in continuing, says, — " Another proposition equally clear is that, at the time the Con- stitution was adopted, it had for a long time been the practice of most, if not all civilized governments, to employ the public credit as a means of anticipating the national revenues for the purpose of enabling them to exercise their governmental functions, and to meet the various exigencies to which all nations are subject/' Here again the assumed parity of the general Govern- ment, under the Constitution as law, with any or all gov- ernments holding sovereignty by right above law, is the foundation of the argument, which is developed in a his- torical review of the political economy of the subject. {lb. pp. 556-570.) In the course of this (ib. p. 561), Judge Bradley intro- duces a proposition which, of itself, would settle every- thing, — " The legislative department being the nation itself." a With this for a fundamental fact, the written Constitu- tion would appear quasi obsolete, and the future labors of the Supreme Court proportionately abbreviated. Judge Bradley in the same place remarks, — 1 In the House of Representatives, Jan. 3, 1867, in the debate on House Bill No. 543 (ante, p. 221, n.), Mr. Thaddeus Stevens said, " In this country the whole sovereignty rests with the people, and is exercised through their representatives in Congress assembled. The legislative power is the sole guardian of that sovereignty. No other branch of the government, no other department, no other officer of the government, possesses one single particle of the sovereignty of the nation." Cong. Globe, 2d Sess. 39th Cong., p. 252. 434 THE PLACE OF SOVEREIGNTY. Chase, Ch. J., dissenting in the Legal Tender Cases. " The interests of every citizen are bound up with the fate of the government. None can claim exemption. If they cannot trust their government in its time of trial, they are not worthy to be its citizens." Citizens, here, were not citizens of the Government, and the interest of citizens of the United States was not in the fate of the Government, as such ; but only as its " trial " might involve the fate of their sovereign, from whom it derived all that made it a government. That sovereign was the States then remaining in a voluntas union. The Government was on trial ; because it was questionable whether, as constituted, it was an adequate instrument for the needs of the sovereign at such a crisis. But if it took powers not belonging to it, as constituted, — because it was not able to answer those needs, otherwise, — then its trial proved it to be a failure. 1 The position taken in these cases by the court was de- scribed in its political bearing by Chief Justice Chase, in his dissenting opinion (12 Wall. 582) : — " It is unnecessary to say that we reject wholly the doctrine ad- vanced for the first time, we believe, in this court by the present majority, that the legislature has any powers under the Constitution which grow out of the aggregate of powers conferred upon the government or out of the sovereignty instituted by it. 2 If this proposition be admitted, and it be also admitted that the legislature is the sole judge of the necessity for the exercise of those powers, the government becomes, practically, absolute and unlimited." The political theory indicated in the opinions of the several justices is here considered without any regard to the correctness of the judgment rendered in these cases. Much of the unfavorable criticism on this decision has been 1 Compare ante, p. 201. 2 If Judge Chase had ever recognized any " sovereignty " whatever as "instituted" by the Constitution, he had helped to build up the idea of a supreme or sovereign government, which was turned against him on this occasion. THEORY OF OUR NATIONAL EXISTENCE. 435 Political Basis of the Decision. founded solely on an assumption that the maxim Stare decisis applies in cases involving political rights. For reasons already stated, 1 it may be urged that, when political powers are involved, the judgment of the Supreme Court in the particular case should be recognized as final, without accepting the grounds given for that single decision as con- clusive on a doctrine of public law. It must be clear that the general Government becomes " practically absolute and unlimited," just as truly when the judiciary, which is as much a part of that Government as ''the legislature," is to be the "judge of the necessity for the exercise of those powers," to an extent beyond the determination of the rights and obligations of parties to the particular case presented for its judgment. These cases in the Supreme Court are, like all earlier cases, a portion of the means of ascertaining what extent of power may be legally claimed for the several branches of the general or national Government. The discussion of this belongs to treatises on constitutional law, properly so called. In an essay of a political character, the inquiry would not be whether these judgments are sustainable in view of the Constitution and Amendments, as written law, but rather, — assuming that they will be sustained, — what theory of the possession of sovereign power they indicate. The question, then, is whether these judgments are sustainable under any other theory than that which sub- stitutes the unitary sovereignty of the nation as a mass, represented by a national Government, 2 for the unitary sovereignty of the organized States in a voluntary union. I shall not offer any opinion whether the language of any judge in these cases amounts to a declaration that this theory has now become true in consequence of events occurring since 1861. The meaning of the phrases now in » Ante, p. 350. 2 Ante, p. 356. 486 THE PLACE OF SOVEREIGNTY. The conflicting Decisions ; how reconciled. use on the general subject, called in common parlance " the results of the war," is as yet too unsettled for a basis of such criticism, the question of revolution or'no revolu- tion never having been squarely stated. But this at least is plain, that, so far as any argument to support any view of the present location of sovereign power may be based on history before 1861, it would be, fro tanto, inconsistent with the idea of basing it on any- thing occurring after that date ; for, if this idea be adopted, the early history is entirely immaterial. The value of all earlier judicial assertions of the origin of the Constitution of the United States in tire will of the people or nation as a mass, in distinction from its origin in the will of the States united, when such assertions are compared with the historical record, has already been considered. It will hardly be contended that the iteration of such assertions, made by judges now on the bench, as to facts which occurred before they were born, must have a higher value, as testimony, than the assertions of their predecessors, for the reason that the newer statements are made after a civil war in which the Government had done no more than sustain itself in the possession of such powers only as it had previously held. If any of the members of the court seem to say that a question as to what had happened before 1787 had been settled by something that had occurred since 1861, the absurdity of such language must be explained away by supposing them to have intended to say that a political event had occurred, after the later date, which made a theory true 1 for the future which a certain school of jurists 1 The judgment in the so-called Legal Tender cases, at December term, 1870, was in opposition to the judgment on the same question in Hepburn v. Griswold, 8 Wall. 626, decided in conference, Nov. 27, 1869. But the con- flict in these decisions could perhaps he explained on the supposition that, whereas the earlier had been made in view 7 of a political theory which had been good enough up to a certain date, the later decision was rendered by a THEORY OF OUR NATIONAL EXISTENCE. 437 Judicial Recognition of a political Change. had professed to discover in the history of the last cen- tury. 1 But such a political event could be found only in that action of the Government which, on the supposition of the continued existence of the eleven States of the Confed- eracy, was usurpation, as already contended. 2 If, therefore, these decisions are sustained on the ground that sovereignty in this country is now vested in the nation as a mass, and not in the States in their voluntary union, it must be assumed that the court has recognized a revolutionary change since 1861, or proposes to assist in accomplishing such a change by the method of juristical construction deprecated by Judge Parker. 3 majority of justices, some of whom recognized that a revolutionary change in the seat of sovereignty had taken place. The judgment in the earlier case had been sustained by five (Chase, Ch. J., Nelson, Grier, Clifford, and Field, JJ. ; Grier, J., being only against legal tender as extended to prior contracts), against three (Miller, Swayne, Davis, JJ.), the court then con- sisting, by law, of eight members. The later judgment was supported by five (Miller, Swayne, Davis, Strong, and Bradley, JJ.), against four (Chase, Ch. J., Nelson, Clifford, Field, JJ.) ; the court, as reorganized by statute, taking effect December, 1866, consisting of nine members, Grier, J. having resigned ; Strong and Bradley, JJ. were new appointments. See Reporter's note, 12 Wall. 528. 1 Ante, p. 108, ix. 2 Ante, pp. 107, 333, 346. 3 Ante, p. 360. As to this question, of the position of the Supreme Court, and its being now a practical question, I refer to an article in the North American Review, February, 1881, — " Partizanship in the Supreme Court," by Senator John T. Morgan. 438 THE QUESTION OF A REVOLUTION. Position of the Judiciary. CHAPTER VIII. Further Consideration of the Question of a Revolutionary Change of the Seat of Sovereign Power. — Position of Private Jurists in Reference to such a Question. — Position of Other Citizens in Public or Private Station. — The Question of Al- legiance a Question foe All. It may be that the extracts given in the last chapter from recent judicial opinions will suggest the inquiry — Does the general Government now exist for the benefit of the States, individually and united ; or, do the States, individ- ually and united, exist for the benefit of the general Gov- ernment? ' But this is the question which the Supreme Court has always, from its earliest day, failed to answer : for it is contradiction to talk of a supreme or sovereign Union, and at the same time, of a government which may, as a sovereign or supreme government, maintain itself against the States which, in their union, are the sovereign United States. As has already and repeatedly been stated in these pages, in this matter of recognizing the location of sov- ereign power, judges are no more than ordinary private citizens. If the}' leave the interpretation of the Constitu- tion, as law, and undertake to determine the political per- sonality who makes it law, they can at best claim only to speak as impartial historians, but with no other means of discerniug the truth than other historians have. 1 It is the duty of the historian to accept the facts of to- day as he does those of yesterday. It is perfectly legiti- mate for a judge to recognize that the law he administers to-day proceeds from another sovereign than that from 1 Ante, pp. 5, 105, 215, 350. THEORY OP OUR NATIONAL EXISTENCE. 439 Position of private Jurists. whom the same rule of action proceeded when he admin- istered it as law yesterday ; 1 but, from the fact that his authority to apply any rule as law must proceed from some known political superior, a judicial officer would be rather tardy in making any recognition of that sort. It therefore was not to be anticipated that the members of the judiciary should, in their official character, speak as unrestrainedly as to any political changes which may pos- sibly be discernible as the result of the civil war between the years 1861 and 1868, as may some private jurists, who have appeared since that time as writers on our public law. I have already herein referred to several recent publica- tions, 2 which in title and form are juristical works, or technical expositions of our constitutional law, as being based on that theory of the authority of the written Con- stitution, as derived from the will of the people or nation as a mass, which I have hereinbefore represented as neces- sarily placing the general Government above the United States, or the political peoples of the States in a voluntary union. I readily allow that the authors referred to may not all recognize, as a legitimate consequence from their theory, that result which I have hereinbefore attributed to it ; that is, that it makes the general Government the actual and only sovereign. That Mr. Pomeroy at least denies the propriety of such a conclusion appears in his work on constitutional law, especially from § 86, where he observes : — " But here it is necessary to repeat and elaborate a general doctrine, which has already been dwelt upon with some emphasis, 1 In the Slaughter House Cases (ante, p. 370), Miller, J. said (16 Wall. 71), — " We repeat, then, in the light of this recapitulation of events almost too recent to be called history." 2 Ante, p. 114, n. 440 THE QUESTION OF A REVOLUTION. A Distinction made by Mr. Porueroy. and which must be constantly called to mind through the whole course of the present inquiry as the solution of many a difficulty and apparent contradiction. This truth is, the absolute and neces- sary distinction between the nation which is the source of political power, and the government which is the creature of that power, established to act, in certain cases, instead of, or as the agent of, that nation." This cautionary statement may be noticed as indicating that there is, somewhere, a liability to make the general Government something more than an agent, and that this occasions " many a difficulty and apparent contradiction." Mr. Pomeroy, himself, fails to make " the distinction " visible ; because " the nation," which he conceives as " the source," is only an hypothesis, and has no actual existence as a political personality. According to the theory sustained in this essay, there has been a tangible, come-at-able somebody who could, as hold- ing sovereignty, be discriminated from the government of which Mr. Pomeroy speaks. 1 But, under his theory and that of a certain school (as a number of writers, more or less distinguishable, may be termed), there is this govern- ment plainly enough, on the one hand ; but as for the sovereign, on the other hand, he must be sought in the clouds, or in the realms of fancy : for except as this gov- ernment is found, that sovereign cannot be found. 1 I understand Mr. Pomeroy as meaning by " people " or " nation " in this connection, the whole mass of inhabitants, without reference to political organization as the political peoples of distinct States, and as agreeing in this with Mr. Jameson's conception, ante, p. 328, n. Compare the references, ante, p. 118, n. ; p. 127, n. I have hereinbefore referred to this theory as that of the school of Story and "Webster, rather because these jurists are com- monly supposed to have upheld this theory than from my own conviction that this was the case. Neither of them, as far as I know, ever defined what be understood by the words "the people of the United States" (ante, p. 337), and each may appear to have sometimes accepted the theory of a division of sovereign powers, resulting from a grant or cession by the States, — the theory sustained by Mr. Webster's biographer, Mr. Curtis, which he thinks was Mr. Webster's own and that of " the best minds in New Eng- land " in liis day. Ante, p. 115, n. THEORY OF OUR NATIONAL EXISTENCE. 441 Mr. Pomeroy's Statement criticised. "Whatever may be the idea of his own position which the author intends to give in the section which follows the above citation, its language may be noticed as giving a wrong idea of the views taken by those who fail to recog- nize his own theory. His words are (ib. § 87) : — " We affirm that the People of these United States are the nation, possessed of supreme powers, and that the government of the United States is their creature and agent. All those theorists who deny the original and essential unity and nationality of this people, declare that the separate states are or were the original nations. As a con- sequence it is either expressly maintained, or tacitly assumed, that there is no United States apart from the limited government created by the Constitution ; in a word, that the United States, and the gov- ernment thereof, which we recognize as distinct, are one and the same existence. 1 In this short sentence are summed up the dif- ferences between the advocates of nationality and those of state sovereignty. If we fail to apprehend the truth of the doctrine which I have stated, we shall fail to obtain any adequate concep- tion of the imperial character of the people as an organic political society." As I have understood the States-rights theory, all who have supported it in any form or degree unite in regarding the general Government as the agent of the States in their political union, whatever that may be under that theory. In the earlier part of this essay I have endeavored to show that one may " deny the original and essential unity and nationality of the people of the United States," as Mr. Pomeroy, Mr. Jameson, and others at the present day, understand the word " people," without declaring that " the States are or were the original nations." That Mr. Pomeroy's own theory necessarily leads to identifying the general Government and the United States, or rather, in placing that government in the place of sov- 1 I understand this description as answering substantially to that view which I have tried to define under IV., ante, p. 102. 442 THE QUESTION OF A REVOLUTION". The Phrase — " Settled by the War." ereignty which belongs to the United States, has, I think, been shown in the debates on the reconstruction measures and in the judicial opinions cited in the last chapter. It is proper to notice that Mr. Pomeroy, with the view apparently of strengthening his original position, has in the fourth edition of his treatise (1879), in the appen- dix (§§ 761-763), represented the Supreme Court as hav- ing, in recent decisions, sustained the theory maintained in his work. To show this, he cites the language of Chief Justice Chase in Lane County v. Oregon, and in Texas v. White, ante, p. 12. 1 Readers who are at all familiar with the course of polit- ical controversies in this country, during the last ten or fifteen years, will undoubtedly have a general recollection of many occasions on which some statement of political doctrine, agreeing more or less closely with the views ad- vanced by the judges and jurists hereinbefore cited, has been proclaimed as "settled by the war." This has been done too by persons whose connection with public affairs may give more or less weight to such an exposition of a mere opinion. It must be superfluous, as it would be quite impossible, to exhibit their number and comparative im- portance. There is, however, a noticeable difference in the various assertions of this as a logical conclusion. Two principal conceptions of the nature of the supposed settlement may 1 A letter from the Chief Justice to the author is also given as showing that the judge's view was in harmony with his own. Whether such agreement can be found, I should not venture to say. The definition of a State by the judge (ante, p. 9) seems somewhat inconsistent with the author's understanding of his much-quoted assertion of State existence {ante, p. 12), and the author's article in " The Nation," also given in the same section, ap- proving the decision of the court, appears rather at variance with the original theory of the text-book. At the same time, both the judge and the jurist are contradicted by the theory of the Reconstruction measures and the decisions cited in the last chapter, each placing the States in subordina* tion to the general Government. THEORY OF OUR NATIONAL EXISTENCE. 443 Two Conceptions of the Settlement. be easily distinguished in such assertions, which, though essentially contradictory to each other, are generally pre- sented in some sort of combination. 1. Of these, one may be called the argument founded upon the lawyer's point of view of the circumstances. 2. The other, — one recognizing in the same circum- stances a revolutionary change, or something analogous ; which may be called the argument founded upon the notion of " a war of ideas." In the sixth chapter I have made various extracts from the debates in Congress on the Reconstruction measures, as part of the res gestce, showing on what doctrines of our constitutional law the majority supposed their legislation to be founded. It is likely that many assertions may be found in those debates that some particular doctrine had been " settled by the war." It might be possible to distinguish here and there a debater who had more or less clearly asserted this on one or the other of the two positions above stated. But in this question, as to the process of reasoning by which it is to be known how any doctrine can be settled by war, a legislator is no better authority than anybody else. This is matter of purely logical demonstration. On this account I offer as illustrations of these methods of proof some which may present the argument in the clearest point of view, without reference to the station of those who are the authors. As being the most recent statement of this sort, and one proceeding from the present holder of the highest place in the administration of the general Government, I here cite a passage from the Inaugural Address of President Garfield, March 4, 1881 : — " The supremacy of the nation and its laws should be no longer a subject of debate. That discussion, which for half a century threatened the existence of the Union, was closed at last in the 444 THE QUESTION OF A REVOLUTION. Illustration of the Lawj-er's Point of View. high court of war by a decree from which there was no appeal, — that the Constitution, and the laws made in pursuance thereof, are and shall continue to be the supreme law of the land, binding alike upon the States and the people. This decree does not disturb the autonomy of the States nor interfere with any of their necessary rules of local self-government, but it does fix and establish the per- manent supremacy of the Union." This view of the circumstances as a "decree " or judg- ment of an issue at law had often been presented at a much earlier date. As showing the rationale of what I have here designated the lawyer's point of view, 1 no better example can be found than that given in the letter of Judge Isaac S. Redfield to Senator Foot, to which reference has herein already been made. 2 The writer says in the opening : — " It is probably from the fact that I have attempted to look at the questions alluded to in your letter as ' Reorganization and Negro Suffrage ' from an exclusively legal point of view, more than from any other fact, that my deductions present in any degree the ap- pearance of novelty or interest. And I suppose their jslausibility, if such they possess, is mainly attributable to that logical sequence which connects them with their antecedents, and which I have at- tempted to preserve. But I am not insensible to the fact that many logical and plausible theories in civil jurisprudence, when attempted to be reduced to practice, are found as impracticable as those of the most absurd and inconsequential character. " But as you have had the courtesy to express an interest in my speculations or opinions as a mere lawyer, the only office I aspire to have, I will give you a mere outline of them in the briefest form." Judge Redfield proceeded to say : — " I. The first great question, then, is, What has been the result of the war ? What has it settled ? How does it leave the States ? " 1. What questions has the war settled ? — War may fairly be i Ante, p. 109. 2 Ante, p. 2G9. THEORY OF OUR NATIONAL EXISTENCE. 445 Judge Redfield's Argument. considered as an action pending in the only tribunal having full jurisdiction of questions between nations and fragments of nations, — the tribunal of force — ultima ratio regum. The results of the war then may be, not inaptly, considered under the figure of a judgment, in an action in a court of justice ; for such in fact is war more than anything else. " 2. The judgment, as in other cases, concludes all the issues in- volved in the action. The most important of these issues is that in regard to the paramount sovereignty of the nation, and the right to vindicate that sovereignty by force of arms against all aggressions, as well from within as without. We think, then, that the National Government may fairly claim, against those engaged in the rebel- lion, that the result has established forever their right to the para- mount sovereignty, and to vindicate the same by force. And it must follow as a result of this, that the war has conclusively de- termined that secession is rebellion and treason, and that the National Government may put it down by force of arms, and punish the offenders in any and all legal modes. It will be seen that this is making the national sovereignty not only supreme, but also the judge of the extent and nature of its own powers. This is but the indispensable consequence of the paramount national sovereignty. This was the great and main question involved in the war and which must be regarded as forever put at rest by the result of the war, or the judgment in the action. " But, it will be asked, How does this leave the States ? " — His answer is, " Unquestionably, in a subordinate position." By what next follows in his letter, the writer shows that he means that all the States of the Union, not merely the " rebel " States, are thus concluded. That is, his position is that the arbitrament of war between those eleven States or their rebel populations and the government supported by all the States voluntarily continuing in union, was like a trial at law determining the rights of all the States, and that the decision attained by their own victory as States composing the Union placed the Northern States 446 THE QUESTION OF A REVOLUTION. The Lawyer's Point of View. in a subordinate position to the government they had sup- ported. 1 Judge Redfield said : — " Unquestionably in a subordinate position. But that is pre- cisely the position in which they are placed by the Constitution." This description must apply to all the States. And he then went on, contradicting his assumption that the ques- tion of the law of the case had been settled by the arbi- trament of war, by stating what that law always had been. But if he had the right to declare this, there was no need of a trial of any sort to settle what the law should be. He remarks : — " The very fact of giving the national tribunals the supreme jurisdiction in all questions affecting the relations of the States to the National Government and a supervisory power over the State courts, upon all those questions, by inevitable consequence, made the nation supreme and the States subordinate. 2 Every lawyer will understand this," etc. Judge Redfield, being still limited by his lawyers' point of view, next took up the then mooted doctrine of " State suicide," for holding which, regarding the matter as a legal inquiry, he of course could find no ground. 3 1 That is, the Northern States, which were said to be "loyal," were, on this trial, in the same box with the States said to be " disloyal." 2 I do not know whether Redfield considered himself of the same political school with Story. {Ante, p. 272, n.) Here he announced the same theory of the Constitution. But he remarked also in this connection, " Encroachment in such a relation, is the natural course of events. It is the history of all unequal relations that the superior becomes more and more powerful, day by day, while the subordinate, year by year and day by day, becomes more and more dependent. And it makes no difference whether the claim on the part of the superior, in any instance, is just or unjust ; it is sure in the end to pre- vail if persistently pursued." Compare ante, p. 343, as to the necessary con- sequences of making the "National" Government the only depository of sovereign power. 3 His words are : "4. How, then, shall the States be treated after the sur- render of the rebellion 1 — This will depend mainly upon our views of the THEORY OF OUR NATIONAL EXISTENCE. 447 Judge Kedfield's Argument. He recognized that such a political result would make everything clear and simple ; but was misled by suppos- ing that, if received at all, it could be received only as an effect of the ivar. In this respect, however, he was no blinder than were Mr. Sumner, Mr. Howe, Mr. Boutwell, and others. 1 Seven pages of the letter are given to prove the con- tinued political existence of the eleven States. Having thus got himself almost into the position of the " Conser- vatives," 2 the writer found himself, as a lawyer, brought face to face with the question of slavery, which he also proposed to settle by finding that the compatibility or non- compatibility of slavery, in any State of the Union, with our form of government was one of the issues settled by a war between the Government and the insurrectionary pop- ulations of eleven States. His dilemma and its solution are thus stated : — " II. But the second grand inquiry, and, we confess, by far the most embarrassing one, remains to be considered, — that is, If all effect of the war upon the States as political persons or corporate organ- izations. If they no longer exist, for any purpose, that will be an end of all question. We have nothing to do but to parcel out the territory into new States, at the discretion of the National Government, and there is no occa- sion to inquire into the modus operandi. That ceases to be a question of right and becomes one of expediency merely. But we think very few will claim all this at the present day." The position taken in this essay is that, in reality, this has been done without being claimed. Ante, p. 235. 1 Ante, pp. 272, 276, 279. 2 He spoke of the States as one might of corporations holding their powers under municipal law, — argued that secession was ultra vires and the ordinances nullities, which was the argument of the so-called conservatives (ante, p. 262 ) ; but he held that the State was still to be found in a " con- structively loyal " portion of the inhabitants of each State. His theory being that held equally by Presidents Lincoln and Johnson, that the powers of each State are not primarily rights of the State as a political personality, but result from the aggregated "legal rights under the Constitution " be- longing to individual citizens, which, in the case of those "loyal" to the general Government, were under its protection as legal rights. Ante, pp. 149, 252. 448 THE QUESTION" OF A KEVOLUTION. The Phrase — " Settled by the War." the functions and powers of the States remain the same as before the rebellion, what benefit are we to derive from all this expendi- ture of blood and treasure ? — This is a question often put, and one which carries great weight, far greater than it is entitled to have, in many instances. But we do not fear its application to our own views. We feel that we have already stated great benefits, 1 result- ing from the war, in that it has settled the true relations of the State and National authority, and we think the war may fairly be regarded as having determined many other questions. "1. It seems to us that the National Government may fairly claim that the war has determined the truth that slavery is incom- patible with the successful operation of our complicated form of gov- ernment. We think, then, that the nation may now fairly say to the States where slavery has hitherto existed, that the war, having fully established the point that slavery is a fatal hinderance in the way of the just operation of the National Government, that it must be so treated and effectually abolished by the States." 2 Being also confronted by the question of reconstruction, slavery being disposed of, it is rather surprising that the learned writer of this letter did not claim that the extent of the powers of Congress, under the guaranty of republican government, over the extension of the elective franchise in all the States, was one of the issues settled by the war. 1 As it requires two parties to make a war, as two to make a case at law, the country at large is under some obligation to the Confederacy for its share in procuring for it the "benefits " of this decision. 2 I do not associate Mr. G. T. Curtis with the publicists of the modern Nationalist School, because I understand him as accepting the theory of a division of sovereignty, and not that of its being held by the nation as a mass. But Mr. Curtis has the same view of an alternative of theories which was decided by " ordeal of battle." In his " Discourse," etc. (ante, pp. 294, 300), he remarks (p. 28), "Suppose that the Southern States had succeeded in establishing for themselves, finally, a separate Confederacy, — a firm and distinct nation. No philosophical historian and practical statesman would thereafter have hesitated to say that for any practical purpose the Northern theory of the Constitution of the United States was gone forever. Just so, I think, we ought to regard the war as having put an end to the doctrine of secession." Compare ante, p. 89, n. By a parity of reasoning, if slavery or no slavery was an issue, slave-holding should at once have been legalized throughout the United States, in case of the success of the Confederacy. THEORY OF OUR NATIONAL EXISTENCE. 449 Judge Redfield's Argument. There would seem to have been no limit to his compe- tency to determine the issues settled. However, he has argued only from his own interpretation of the guaranty, 1 taking the war as having indicated the particular States to which it should be applied, as a consequence of its having settled the emancipation issue. Even if there were any real parallel between a war, the nature of which excludes the idea of legal determination, and an action at law between two private parties, who, by the supposition, are under the legislative will of a common superior, by whose intervention the trial is held, it is evident that the author of this letter, trying to write as a lawyer, arrogated to himself individually the right to settle, after the supposed trial of the action, the issues which were to be judged. It would be consistent with the nature of war to say that the prevailing party must have the power, after its physical power has been acknowledged by the defeat of the other, to consider anything he may choose as settled by it. 2 In the present case, however, as has been shown, there is no evidence that a majority, even of those who maintained the military action of the Government, did so with any such ideas of the nature of the issues ; and far less can it be shown that there was a majority of the nation, as a mass, who contemplated such a result. 3 Throughout this essay I have endeavored to avoid all 1 As Redfield, in this part of his letter, recognized most explicitly that the extension of the elective franchise, even for " national elections " (ante, p. 404), had been left to the States, he found it necessary to elaborate at some length his explanation of the guaranty. 2 Ante, p. 3. 8 Ante, p. 347, n. 4. To say nothing of the fact that such issues had been expressly repudiated by the House of Representatives when the war began {ante, p. 42, n.) and in Mr. Lincoln's earliest proclamations (ante, pp. 54, 55). Considering how closely Judge Redfield's and Mr. Loring's pamphlets (ante, p. 269) accord with the subsequent measures of Congress, and with many later utterances from high places, it would be only justice to remember them as leading exponents of the later American constitutional law. 450 THE QUESTION OF A KEVOLUTION. Mr. Garfield's View of the "War. allusion to political parties, even by naming them. It must, however, be obvious that, as the questions herein considered affect the political , obligations of each inhabi- tant of the country, it is impossible to cite the words of men whose opinions will be received as representative of those of many others without seeming to introduce the issues of party contest. In the course of distinguished service during the last fifteen years, as member of the House of Representatives, Mr. Garfield, at occasions presenting issues of primary im- portance, had stated more or less fully his own theory of our national existence. These statements must now have a greatly increased significance, as representative opinions, in consequence of the elevation of their author to the highest office under the Constitution, depending on the electoral votes of all the States. I have already cited a passage from President Garfield's Inaugural, 1 as illustrating the claim that, as a mode of settliug political principles, a war may be compared to an action at law settling a legal controvers} r . It will, however, be only just to the author of the In- augural to recall that, long before the opportunity to speak with the highest possible prestige for his opinions, he had indicated his own acceptance of that basis which has here- inbefore been presented as the only one possible if the theory maintained in this essay is rejected, — the basis that, as matter of historic fact, the theory of government which he, personally, held had become true by revolution. I therefore cite his words as illustrating the second of the two conceptions of the phrase " settled by the war." 2 1 To avoid possible misconstruction, I may state that the entire preceding seven chapters of this essay were already in type before the delivery of this Inaugural, March 4, 1881, and that I had no knowledge of the remarks hereinafter cited from Mr. Garfield's speeches in the House, until after that date. 2 Ante, p. 443. THEORY OF OUR NATIONAL EXISTENCE. 451 Mr. Garfield's Speech, Aug. 4, 1876. On the 4th August, 1876, the House being in committee of the whole on the state of the Union, Mr. Garfield, being then a representative from the State of Ohio, having the floor, framed his remarks mainly as a reply to those of Mr. Lamar, 1 a representative from the State of Mississippi. After a few introductory sentences, Mr. Garfield said: — " With all my heart I join with the gentleman in rejoicing that the war-drums throb no longer, and the battle-flags are furled, and I look forward with joy and hope to the day when our brave people, one in heart, one in their aspirations for freedom and peace, shall see that the darkness through which we have traveled was a part of that stern but beneficent discipline by which the Great Dis- poser of events has been leading us on to a higher and nobler na- tional life. " But such a result can be reached only by comprehending the whole meaning of the revolution through which we have passed and are still passing. I say still passing ; for I remember that after the battle of arms comes the battle of history. 2 The cause that triumphs in the field does not always triumph in history. And those who carried the war for union and equal and universal free- dom to a victorious issue can never safely relax their vigilance until the ideas for which they have fought have become embodied in the enduring forms of individual and national life. 3 " Has this been done ? Not yet. * I ask the gentleman in plainness of speech and yet in all kind- ness, is he correct in his statement that the conquered party accept the results of the war ? Even if they do, I remind the gentleman that accept is not a very strong word. I go further. I ask him 1 Mr. Lamar's remarks on the second of the month are found in the Cong. Record for the first session of the forty-fourth Congress, beginning p. 5087. Mr. Garfield's reply begins on p. 5180 of same report. The speech was, as I have been informed, printed as a pamphlet, with the title, " Can the Democratic Party be safely intrusted with the Administration of the Govern- ment ? " Passages from it appeared in most of the "Lives" of the suc- cessful candidate published before the election in 1880, and a long extract is given in Chips from the White House, by J. Chaplin. 2 Compare the opening remarks of the first chapter, ante, pp. 2, 3. 8 Compare the quotation from Mr. Jameson, ante, p. 367. 452 THE QUESTION OF A REVOLUTION. Other Writers on the "War. if the democratic party have adopted the results of the war. 1 Is it not asking too much of human nature to expect such unparalleled changes to be not only accepted, but, in so short a time, adopted by men of strong and independent opinions? " The antagonisms which gave rise to the war and grew out of it were not born in a day, nor can they vanish in a night." But as this is a political question, in distinction from a legal one, the right to discuss it cannot be altogether en- grossed by those who may, as statesmen, judges, or private jurists, think themselves specially qualified. Others, not professing to have had juristical training, but as fully qualified by education and civic virtues to consider any question belonging to history and political philosophy as are any members of the judiciary, have declared the theory for which they arrogate the names of " nationalism" and " unionism," settled by the war. 2 It may well be that, from the less technical character of their speeches or writ- ings, their arguments will reach a much wider circle of readers than the best reputed legal treatises can command, and some of them may have an audience abroad among those who have no other acquaintance with the history of our public law. 1 It will be noticed that here the speaker used the terms, " the conquered party " and " the democratic party," as equivalent terms : and from this pas- sage and others to be cited hereafter, it will appear that he placed all his political opponents, irrespective of residence in States north or south, in the same category in respect to what he here describes as " a revolution," and " unparalleled changes," for opposition to which, as the adherents of an old regime, he charges them with treason, while he claims for himself and his political associates the position of successful revolutionists. The passages which in Mr. Garfield's remarks follow the above citation are also an illus- tration of the theory of a revolution. They will be found hereinafter cited under a somewhat different view of the same question {post, p. 465), as illus- trating " the war of ideas." 2 To say nothing of the name "imperialism." Compare Bateman's Politi- cal and Constitutional Law, §§ 101-111. I do not concede the justice of this exclusive claim to the terms " nationalism " and " unionism," because I hold that national existence is fully realized under that theory which recog- nizes the States in union as the sovereign. THEORY OF OUR NATIONAL EXISTENCE. 453 Limitations of the ordinary View. It would be impossible to distinguish any one or more publications with a view to exhibit the train of thought or method of argument adopted by all as a class. The writers referred to may, in a general way, be described as those who maintain that, whether the theory which they approve was or was not true as fact before the year 1861, it has, in consequence of events after that date, now become estab- lished as a fundamental fact, enlarging or confirming the powers of the general Government, and subordinating those of the States in some undefined degree. 1 These writers may or may not appear to their readers to indicate a recognition of anything like a revolutionary change ; and, if they do this in any degree, it does not ap- pear to be upon the principle, already herein accepted, that any political change, if it be matter of fact, is to be accepted simply as matter of fact. The writers referred to do not appear to have thought of showing that the construction of the Constitution, as law, which they personally hold to be correct should be now accepted because the action of the general Govern- ment, following its military success and made possible by it, 2 can be defended upon that construction and upon no other. This it would be perfectly legitimate for them to do, and in accordance with the method followed in this essay. 1 As an example of the history accepted by writers of this class, Mr. R. Frothingliam's Rise of the Republic of the United States, p. 3, may be cited : " This element of union has met triumphantly every trial. Its great- est crisis by far was the late appeal to the only jurisdiction between nations, and fragments of nations, the ultima ratio regum, — the tribunal of force. The judgment then rendered, after a field of war unparalleled in the annals of domestic strife, is that these States and communities are associated in a bond of union that is indissoluble ; that the supreme law of the land or- dained in the Constitution is paramount ; that the Government, acting under this law, has the right and power to vindicate its authority by force; and that itself is the judge of the nature and extent of its own powers." The author here refers to Redfield's letter, and to Draper's Civil Policy in Amer- ica, p. 85. 2 Ante, pp. 3, 4, 322. 454 THE QUESTION OF A EEVOLUTIOK Ordinary Conceptions as to the War. Nor do these writers offer any proof that the military success of the general Government, or any other demon- stration of its political purposes indicates that " the bulk of the community," or " the people overwhelmingly united," 1 have determined that a certain view or theory as to the seat of sovereignty shall now be accepted, what- ever may have been the actual investiture of sovereignty before the war. They do not attempt to show even that a certain opinion on this subject was embraced by a ma- jority of those who supported the Government in resisting secession as rebellion, nor that the Eeconstruction mea- sures were approved by a majority even of the inhabitants of the Northern States. Their argument, when reduced to its elements, is that a certain theory must be now rec- ognized as established because they, who individually think it ought to be received, were, though comparatively per- haps only a handful, among those who supported the pre- vailing combatant. 2 It might be inferred from the language of some of these writers that there had been two political doctrines as to the best foundation of government for this country, and two opinions as to the moral, economical, and political ad- vantages or disadvantages of negro slavery ; that these two doctrines and two opinions were perfectly well apprehended by the people of the country, North and South, as a mass of men, women, and children, without discrimination of any bodies of electors or voters for State or general gov- ernments as actually holding political power ; and that, further, there had been a general understanding among this people, as a mass, North and South, that there should i Ante, p. 347. 2 Or, their argument is that " the people," as a whole, must have sanc- tioned certain measures, because all persons who disapprove such measures are not to be considered as part of such " people." Compare the remarks of Mr. Garfield hereinafter cited {post, p. 470) from the continuation of his speech of Aug. 4, 1876. THEORY OF OUR NATIONAL EXISTENCE. 455 War as Evidence of past Fact. be a war, in which the Government of the Confederated States should represent one doctrine of government and one opinion of slavery, and the general Government should represent the other doctrine and opinion, and that the doc- trine and opinion represented by the conqueror should be accepted by the whole people, as a mass, North and South, for the future, as the only basis of political existence : the choice between the two doctrines and two opinions being made to depend upon a bloody war of four years' dura- tion, though it might, by a like general understanding, have been made to depend on a game of cards or the turning up of a cent. But, however confidently any disciples of this school may present their own view of constitutional jurisprudence as something which may be known by the victory of one army and the defeat of another, they do not relinquish in the least their inconsistent and uow superfluous claim for a basis for those views in the earlier political history. In fact, it would appear from the method of demonstra- tion adopted by all of this political school, whether speak- ing as judges of the Supreme Court, statesmen, private jurists, or historians, that the political events which have occurred since 1861 are not only taken by them as indicat- ing the present and prospective possession of sovereignty b}^ the nation as a mass, solely represented by a "National " government, in respect to which the States are to be sub- ordinate corporations, but as being testimony that the same possession of sovereignty existed when the Constitution was adopted in 1787. * From the language of the greater number of these pub- 1 I am not aware that anybody, thus far, has claimed that the historical question whether negro slavery had ever been lawful in the colonies and States was one of the issues settled by the war. Though some seem in- clined to regard their own interpretation of the Preamble of the Declaration of 1776, in the sense of a legislative abolition decree, as one of the matters 80 settled. 456 THE QUESTION OF A REVOLUTION. Of the War as a War of Ideas. licists it might be inferred that it had been understood and agreed among all, North and South, not merely that the issue in the field should determine for the future, the po- litical fact for the whole country, but that the same appeal to the God of battles should settle which of the two theories had the support of history before 1861 ; that is, which view of facts from 1776 to 1861 should thereafter be held as the genuine one. 1 The simplicity in this respect of some .of these writers on public law suggests a return to that mediaeval jurispru- dence under which the honor of a woman, or the loyalty of a man, or any question of past fact, was determinable by the ordeal of fire or by that of battle, by champion or in person. So far as publicists of this class, whether they claim to speak as statesmen, lawyers, or historians, attempt to avoid these puerilities, they do it by resorting to others. They argue that the prevailing party, because it was the party which actually prevailed, must have represented ideas which, being forces of nature or laws of nature in that sense, must always have had, in themselves, authority as municipal law derived from political sources, even though the written Constitution, the earlier laws of Congress, the laws of the several States, and the political and social habitudes of the people might have been contrary to these ideas. 2 Hence it follows, according to their reasoning, that, however inconsistent the action of the general Govern- ment may have been with that which was to have been expected by ordinary deduction from the Constitution and general principles of public law, there was no revolution- ary action or usurpation on its part 3 in treating the at- 1 Compare ante, p. 99, as to the constant tendency to confound doctrine and history in these questions. 2 Compare, ante, p. 278. 8 Ante, p. 107. THEORY OF OUR NATIONAL EXISTENCE. 457 Of Nationalism as a Law. tempted secession as the rebellion of States in their political capacity. The Government, while in appearance actively carrying out certain measures, as if in exercise of indepen- dent political volition, was really, according to their argu- ment, only unconsciously, or at least passively, exhibiting the operation of forces all along concealed beneath consti- tutions and political arrangements which were now for the first time exhibiting their necessary though secret unison with the " higher law." 1 It may be well to notice that this idea or law of nation- alism, unionism, imperialism, or whatever else it may be called, has not hitherto been presented by anybody as known from the actual succession of political events in this country. It would be perfectly reasonable, and in accordance with the distinction already herein made, 2 for non-professional advocates of the theory to argue that on no other basis than this can the action of the Government since 1861 3 be known as legitimate, or as anything else than usurpation. They might say that, as matter of fact and history, submission to this action has been enforced 1 This corresponds with the fetisli ideal of the Constitution (ante, pp. 305, 321, 339, 357) ; for the supposed deity must have its choir of self-consti- tuted priests to proclaim its oracles. The position above described is totally distinct from the recognition that any holder of supreme political power must ultimately come to grief who does not conform his legislation to the observed " laws of nature." This point is well stated in Argyll's Reign of Law (p. 326, Ch. VII., " Law in Politics"), and the legitimate recognition of such a "reign of law " is illus- trated in the introductory remarks by Mr. Garfield, on a bill for taking the Ninth Census, Dec. 16, 1869, 2d Sess. 41st Congress, Globe, 178. But, here, the question is whether one citizen may be treated as a traitor by another, because he may not think it advisable to exercise his political rights, under a constitution, in accordance with doctrines which the other regards as laws of nature, or " decrees of the Almighty." Compare, ante, p. 367. 2 Ante, p. 348. 8 Either in suppressing the rebellion, as the rebellion of States in the Union (ante, p. 354), or in abolishing slavery in the slaveholding States of the Confederacy, while recognizing them as possessors of the same power over personal status which was held by every other State. (Ante, p. 200.) 458 THE QUESTION OF A EEVOLUTION. Of Nationalism as a Law. under this idea, and, therefore, it must now be accepted in theory, even though the judiciary and the jurists should have failed in their defence of that action under any of the methods ordinarily known in courts of law for de- termining any action as legitimate under written consti- tutions. 1 But, in contrast to this method, these writers present their solution of the problem as a deduction from prin- ciples assumed a priori. They present what they call nationalism, unionism, and empire, as a political force necessarily inherent, at the pres- ent day at least, in all masses of population occupying some presupposed territory, 2 which like the will of an ac- tual person claiming homage or allegiance, unifies or con- centrates political powers formerly held separately, or as antagonistic, within the same territory. From the reputation for attainment in physical science which some writers of this school can justly claim, it is only fair to infer that they do not themselves regard this principle of theirs as an a priori assumption, but as one of those " laws," as they are accustomed to term them, which are generalizations of observed facts ; that is, modes of ac- tion in nature. They would probably say that they know that this "law," which they call "nationalism," etc., exists as a force controlling the wills of men in their political ac- tion, from a generalization of successive events in European political history. They would probably point to the fact that what are now called " nations," that is, populations more or less homogeneous in race and connected by a common lan- i Ante, pp. 348, 361. 2 The territory to be recognized as the place for the destined nation is supposed by such writers to be determined, not by antecedent political arrangements (for under their view these must be consequences and not causes), but by economical considerations, based on geographical and topo- graphical advantages or disadvantages. See Dr. Draper's political treatises. Compare, ante, p. 98, note. THEORY OF OUR NATIONAL EXISTENCE. 459 Of Nationalism as a Law. guage, occupying a relatively large territory under a unitary political system of some sort, exist at the present time where a few centuries, or even decades, ago a divided or relatively fractional arrangement of the same lands and populations, in respect to political existence, had prevailed. 1 So far as any of these writers, whether jurists or physi- cists, present any argument in applying their supposed "idea," it is based entirely on the double meaning of the term " a law." 2 They assume that what they recognize as an " idea," or have conceived as a law in the sense of an observed fact or mode of action, that is, a law in the sec- ondary sense, shall be understood by everybody as a law in the primary sense, that is, as a rule of action. They conceive of this law as one of political authority, acting upon each individual constituent of the several masses of population, which, with the territory occupied, should be " a nation," and making it the political duty of each, which it is treason to deny, to abandon all political combination in and all allegiance to pre-existing smaller political per- sonalities, and to submit themselves to some more unified or consolidated form of political existence, distinguishable by grander geographical conditions. It is, however, unfortunate for writers of this class that the history of political society in other times and countries does not support the generalization which they call "law," that is, law in the secondary sense of the word, as a mode of existence or of action. In point of historic fact, the genesis of modern nations has not taken place in conse- 1 " Political integration," is a term used by Herbert Spencer as applica- ble to this process. 2 « Words, which, should be the servants of thought, are too often its masters ; and there are very few words which are used more ambiguously, and therefore more injuriously, than the word ' law.' . . . It matters little in which of these senses it is used, provided the distinctions between them are kept clearly in view, and provided we watch against the fallacies which must arise when we pass insensibly from one meaning to another." — Argyll's Reign of Law, 5th Am. Ed. p. 03. Compare, ante, p. 97. 460 THE QUESTION OF A REVOLUTION". History of Nationalism as a Fact. quence of any " idea " or "yearning " in populations, com- pelling them to become unified or massed together under one consolidated government. The unification has taken place, in times more or less recent, but always by a process exactly the reverse of that which these supporters of " na- tionalism " have imagined as a basis for their generalization. As matter of history, the political change, from a structural separatism to a structural nationalism, has been effected by the action of some distinct and relatively minor political organization, employing force, fraud, diplomacy, intrigue, dynastic marriages, etc., in absorbing or adding to itself its weaker political neighbors as the parts constituting the personality finally known as a nation. As matter of historic fact, it has always been the pre- existing smaller political personality, or state, that has brought about the later existence of the nation as a mass of population in unity, and never a pre-existing mass of population in unity as the nation that has brought about the later existence of subordinate smaller political person- alities, or states. This has been exemplified in every country in Europe, from the first decline of feudal institutions founded on the ruins of the Roman Empire, to the latest political arrange- ments. 1 1 In Great Britain from the time of the Anglo-Saxon heptarchy, in the absorption of Wales, Ireland, and Scotland; in France under Louis XI., Henry IV., and their successors ; in Spain from the time of Ferdinand and Isabella. So in Italy by the history of the house of Savoy, and in Germany by that of Prussia, — mostly within the last half century. " But in both it was by the advance of an existing state, which extended itself to include wider and wider territories, and gave to them its organization, that the unity of the nation was brought about. And this was done with little or no change in the internal constitution of the growing kingdom, little or no movement towards a resettlement of society on democratic foundations. In the constitution of the North German Confederation and the new German Empire there is no mention and little indirect recognition, of those ' Funda- mental Rights of the German people,' on which the Frankfort Parliament of 1848-1849 spent so much precious time and toil." — Bryce's Holy Roman Empire, 437. THEORY OF OUR NATIONAL EXISTENCE. 461 Of Emancipation under an Idea as Law. . It is also remarkable that in the very latest instances, and while this theory of nationalism as an " idea," or force of nature operating of necessity, has been most loudly pro- claimed and made the doctrine of a school, its advocates have generally been found resisting the actual unification, when it was in progress under the only method by which it had ever been known to take place before. They saw their desired end in the process of accomplishment by the only means which experience had shown to be practicable ; but they opposed it because it was not brought about in accordance with their theory, that is, in some unexplained manner, incompatible with the nature of things. 1 It is by a similarly deceptive use of the double meaning of the word " law " that so many have justified for them- selves the action of the Government in respect to negro slavery, not so much in the matter of emancipation during the war 2 as in the Reconstruction policy followed in secur- ing the assent of the ten States of the Confederacy to the Thirteenth and Fourteenth Amendments, and in forcing upon them the admission of the emancipated negroes to suffrage. 3 1 Compare Lectures on German Thought, by K. Hillebrand, pp. 283-286, . remarks on Germans, and the political party called " Little Germany." I claim that while the course of events in this country, since 1861, has illus- trated the process by which all national consolidation had previously taken place, it is also a direct contradiction of the theoretical nationalism of these publicists. It was the States remaining in their voluntary union, not a "Na- tional " government, not an abstract, — " the Union," — distinguished from States united, and far less the people or nation as a mass of individuals, who by force established their exclusive possession, in union, of all sover- eignty over populations disposed to resist it. Ante, pp. 151, 354, n. 2. 2 The emancipation, so far as it was independent of the Fifteenth Amendment, may be popularly supposed to be due to an exercise of a " war-power " held by the executive. Compare, ante, p. 199. As other arti- cles in the North American Review on this subject have herein been noticed (ante, p. 347), a still later assertion of the validity of the Emancipation Edict, in an article by Mr. Aaron F. Ferris, December, 1880, should be also mentioned. 3 Ante, pp. 217, 256. 462 THE QUESTION OF A REVOLUTION. Of Ideas regarded as Laws. Having recognized what they call an "idea," as a con- ception based on an observed succession of facts in the his- tory of general jurisprudence, that is, a laiv in the secondary sense, indicating the increase of equality among all private persons in relation to the state and the decline of all forms of involuntary servitude, — some persons present this " idea " as a laiv in the primary sense of a rule of action, which, like the " idea " or " law " of nationalism or union- ism, may have coercive effect independently of the volition of any possessor of political force. But, even if it be admitted that such idea or principle, or law in the sense of an observed mode of action, is dis- tinguishable by the philosophical historian in the history of social institutions, 1 it is evident from the nature of politi- cal existence — which is nothing else than the manifestation of personal will, the will of one or of many actual human beings 2 — that such a law imposes no political obligation upon anybody. By undertaking to enforce it, a govern- ment must contradict the position that it is such a law or supposed necessary condition of things ; for a law that has to be enforced by a political sovereign cannot be a law of nature or observed condition of existence. 3 The so- called "laws" discovered by Galileo, Kepler, and Newton acted for them and for all the popes, princes, and peoples of 1 The author of the Reign of Law distinguishes five secondary senses of the word law ; the fifth, — "As applied to abstract conceptions of the mind, — not corresponding with any actual phenomena, but deduced therefrom as axioms of thought, necessary to our understanding of them. Law, in this sense, is a reduction of the phenomena, not merely to an order of facts, but to an order of thought." 5th Am. Ed. p. 65, see also p. 108 of the same. Undoubtedly, an idea or law of nationalism or unionism, in this sense, may be recognized. So, too, the famed " social compact " is a fact, regarded as a law in this sense, and the same may be said of the doctrine of natural equality. Compare Jameson's Const. Law, §§ 65-67. 2 Compare Dr. Maine, ante, p. 829, note. 3 "Force is the root-idea of law in its scientific sense." — Reign of Law, p. 69. THEORY OF OUR NATIONAL EXISTENCE. 463 Of a War of Ideas. their times, whether the popes, princes, and peoples ordered them to act or not. In applying their "ideas" or "laws" to the circum- stances of this country during the last twenty years, the publicists of this school represent the general Government as applying or enforcing these ideas or laws as the rule of a known political superior, which it was criminal or trea- sonable on the part of any States or individual citizens to disobey. 1 To bring about the required connection between these ideas, or so-called " laws," and the political authority rep- resented by the general Government, these publicists im- agine the ideas themselves as the actual parties in a war against opposite ideas of slavery and separate State sover- eignty, — a war which in appearance only was carried on by that government as in the ordinary case of a holder of political power resisting an armed rebellion. 2 It is common with them to speak of the war as " a war of ideas," and of the issue of the war as determining the moral and political status of two classes of the inhabitants of this country, regarded as subjects, partisans, or allies of one or the other of these two sets of ideas, without refer- ence to any question of pre-existing allegiance to some political superior. i Ante, pp. 271, 278. 2 In the course of a debate, to be noticed hereinafter, Mr. Garfield said, June 27, 1879, 46th Cong. 1st Sess. Record, 2390 : " The dogma of State sovereignty, in alliance with chattel slavery, finally made its appeal to the court of last resort, where the laws are silent, and where kings and nations appear for judgment. In that awful court two questions were tried, — Shall slavery live 1 and Is a State so sovereign that it may nullify the laws, and destroy the Union ? Those two questions were tried in the thousand battle- fields of the war; and if war ever ' legislates,' as a leading Democrat once wisely affirmed, then our war legislated finally upon those subjects, and determined beyond all controversy that slavery never should again live in this republic, and that there is not sovereignty enough in any State either to destroy the Union or nullify its laws." In this incongruous mixture of images, war figures both as judge and legislator. 464 THE QUESTION OF A REVOLUTION. Of a War of Ideas. Under this view of the nature of the war, the citizens of the States of the Confederacy are to be deemed rebels or traitors, not because they rose in arms against a political sovereign, but because the armies representing slavery and separate State sovereignty were defeated by armies repre- senting the antagonistic ideas. It is therefore perfectly natural, or logical, for these persons to regard as rebels and traitors any citizens of a Northern State who disapproved of the emancipation policy, or who believed that the Constitution derived its authority from the States in union, even though they had support- ed the general Government in maintaining its constitu- tional authority. 1 From such premises it would be natural to conclude that, if the military result had been different, not only would the Confederate States have achieved their inde- pendence, but the people of the Northern States — or a portion of them, easily distinguished by their professed devotion to " ideas " — might have been legally punishable by the conquerors as traitors. But as this would be a self-stultifying possibility, many have tried to make out a connection between their own ideas of nationalism or unionism, of liberty of personal con- dition, political equality, etc., and the legislative will of a possessor of political power, by assuming that, as matter of history, these ideas had been proclaimed with legislative intent by the people or nation, as sovereign, at the time of the Revolution of 1776, in advance of any legislative action of any State or Federal government. They refer to the preamble of the Declaration, as containing a rule of action binding and loosing with the force of law, though they admit that it had been constantly violated from that mo- ment, by the constitutions of the States, the constitution 1 Compare post, p. 468 and the citations to be given hereinafter from Mr. Garfield's speech of Aug. 4, 1876. THEORY OF OUR NATIONAL EXISTENCE. 465 Mr. Garfield on the War of Ideas. of the United States, and the laws proceeding from the general and State governments. 1 The most recent illustration of this deduction of legal principle is to be found, somewhat fantastically modified, in the Inaugural of President Garfield, in a sentence imme- diately following those already cited, ante, p. 400. " The will of the nation, speaking with the voice of battle, and through the amended Constitution, has fulfilled the great promise of 1776, by proclaiming 'liberty throughout the land to all the in- habitants thereof.' " 2 In continuing his remarks (ante, p. 452) in the House, on the 4th August, 1876, Mr. Garfield said : — "Mr. Chairman, great ideas travel slowly, and, for a time, noise- lessly as the gods, whose feet were shod with wool. Our war of independence was a war of ideas, of ideas evolved out of two hun- dred years of slow and silent growth. When, one hundred years ago, our fathers announced as self-evident truths the declaration that all men are created equal, and the only just power of govern- ments is derived from the consent of the governed, 3 they uttered a 1 This idea may be traced in many of Mr. Lincoln's addresses, as can be seen in any of the memoirs which have been written. Compare Mr. Lowell's expressions. (Ante, p. 271.) Mr. Boutwell, in a speech at Weymouth, July 4, 1865, said that the government had, till then, proved a failure, because it did not agree with the Preamble to the Declaration. 2 Those who are familiar with the minor incidents of the Revolution will suppose that the record of the promise referred to was made, when the Dec- laration was proclaimed, by the ringing of a bell, popularly known as " the Liberty Bell," in the belfry of the building in Philadelphia afterwards called Independence Hall, in which the Revolutionary Congress was assembled. This bell, at its first casting in England, and at its recasting, after fracture, in Philadelphia, bore the inscription ; " By order of the Assembly of the Province of Pennsylvania, for the State House in the city of Philadelphia, 1752. Proclaim liberty throughout the land to all the inhabitants thereof. Levit. xxv. 10." The judiciary, hereafter, may be compelled to be guilty of a bad pun, by citing the founders of this bell as even higher authority than the " foun- ders " of the Constitution. 8 The speaker's idea of " the consent of the governed " may be peculiar. During the first (extra) session of the Forty-Sixth Congress, an excited debate arose from the opposition to an appropriation bill for the support of 466 THE QUESTION OF A REVOLUTION. Mr. Garfield's Speech, Aug. 4, 1876. doctrine that no nation had ever adopted, that not one kingdom on the earth then believed. Yet to our fathers it was so plain that they would not debate it. They announced it as a truth 'self- evident.' . . . x " It will not do. Mr. Chairman, to speak of the gigantic revolu- tion through which we have lately passed as a thing to be adjusted and settled by a change of administration. It was cyclical, epochal, century-wide, and to be studied in its broad and grand perspective, — a revolution of even wider scope, so far as time is concerned, than the Revolution of 1776. AVe have been dealing with elements and forces which have been at work on this continent more than two hundred and fifty years. I trust I shall be excused if I take a few moments to trace some of the leading phases of the great struggle. And in doing so, I beg gentlemen to see that the subject itself lifts us into a region where the individual sinks out of sight and is ab- the army for the year ending June 30, 1880. Mr. Garfield, March 29, 1879, speaking of this action of the majority as " revolutionary " said : " Our the- ory of law is free consent. That is the granite foundation of our whole superstructure. Nothing in this republic can be law without consent, — the free consent of the House ; the free consent of the Senate ; the free consent of the executive, or, if he refuse it, the free consent of two thirds of these bodies. Will anybody deny that ? Will any man challenge a line of this statement, — that free consent is the foundation rock of all our institutions ? " It may at least be questioned whether anybody ever understood the " con- sent of the governed " as meaning only that the legislature should be free to use its power. Mr. Garfield's application was that the majority would be using " its voluntary powers to destroy the government " by re- fusing the appropriation to carry into effect the provisions of an existing statute. Cong. Record, p. 116. 1 The intervening paragraph is as follows : — " Whence came the immortal truths of the Declaration ? To me this was for years the riddle of our history. I have searched long and patiently through the books of the doctrinaires to find the germs from which the Dec- laration of Independence sprang. I find hints in Locke, in Hobbes, in Rousseau, and Fe'nelon ; but they were only the hints of dreamers and phi- losophers. The great doctrines of the Declaration germinated in the hearts of our fathers, and were developed under the new influences of this wilder- ness world, by the same subtile mystery which brings forth the rose from the germ of the rose-tree. Unconsciously to themselves, the great truths were growing under the new conditions, until, like the century-plant, they blossomed into the matchless beauty of the Declaration of Independence, whose fruitage, increased and increasing, we enjoy today." Compare remarks on the same subject, ante, pp. 297, 814. THEORY OF OUR NATIONAL EXISTENCE. 467 Mr. Garfield on the War of Ideas. sorbed in the mighty current of great events. It is not the occa- sion to award praise or pronounce condemnation. In such a revo- lution men are like insects, that fret and toss in the storm, but are swept onward by the resistless movements of elements beyond their control. I speak of this revolution, not to praise the men who aided it, or to censure the men who resisted it, 1 but as a force to be studied, as a mandate to be obeyed. In the year 1620 there were planted upon this continent two ideas irreconcilably hostile to each other. Ideas are the great war- riors of the world ; and a war that has no ideas behind it is simply brutality. The two ideas were landed, one at Plymouth Rock, from the Mayflower, and the other from a Dutch brig at Jamestown, Virginia. One was the old doctrine of Luther, that private judg- ment, in politics as well as religion, is the right and duty of every man ; and the other that capital should own labor, that the negro had no rights of manhood, and the white man might justly buy, own, and sell him and his offspring forever. Thus freedom and equality on the one hand, and, on the other, the slavery of one race, and the domination of the other, were the two germs planted on this continent." The speaker continued with a brief allusion to the course of the antislavery contest in the House and in the country, after which he remarked : — " This conflict of opinion was not merely one of sentimental feeling; it involved our wdiole political system; it gave rise to two radically different theories of the nature of our Government, the North believing and holding that we were a nation, the South in- sisting that we were only a confederation of sovereign States, and insisting that each State had the right, at its own discretion, to break the Union, and constantly threatening secession where the full rights of slavery were not acknowledged." ' l 1 The reader may compare, on this point, the concluding portions of these remarks. 2 The citations made from this speech are given here merely as exempli- fying a certain conception of the political history of the country since 1861, in connection with the possible recognition of a revolution. It is therefore not necessary to notice the character of any particular statement as to ear- lier history, either for truth or falsehood. 468 THE QUESTION OF A REVOLUTION. Mr. Garfield's Position as a Revolutionist. It is not material here to discuss the position taken by the speaker in thus presenting the question of allegiance and of political duty as dependent on the moral question of the fitness or unfitness of negro slavery. 1 It is enough to remind the reader that the purpose of this essay has been to present the former question by itself, and as one which necessarily arises in every country, whatever dif- ferences in complexion or race may exist among its inhabitants and whatever may be its laws of personal condition. In the argument of the speaker on this occasion, how- ever, it was essential that he should thus combine these questions in determining the position of his fellow- citizens in his own and in other Northern States. For the re- mainder of his speech contains the proposition that all who in any part of the country held a different view from him- self and friends as to the powers of the general Govern- ment, more especially in reference to laws of personal condition, were in the position of rebels and traitors to- wards the actual administration controlled by his own party. And this proposition was presented as a consequence of events since 1861, whereby, according to his own state- ment, he with his political friends occupied the position of successful revolutionists, — a position enabling them to 1 As a member of the Thirty-Ninth Congress, Mr. Garfield declined "a general discussion of the Reconstruction policy," 1st Sess. 89th Cong. Globe, 2462, acquiescing, rather than agreeing, in the less heroic treatment approved by the majority. He favored a more stringent disfranchisement of partici- pants in the rebellion, and a provision for universal suffrage ; regretting " that the House could not have found the public virtue such that we might come out on the plain unanswerable proposition, that every adult intelli- gent citizen of the United States, unconvicted of crime, shall enjoy the right of suffrage." lb. 2462-2464. In the debates on Bill No. 1143, To provide, &c, Mr. Garfield advocated purely military rule, in the strongest terms, 2d Sess. 39th Congress, Globe, 1104, 1183,1320; agreeing with Mr. Stevens, Mr. Shellabarger, and their friends. Compare ante, pp. 225, 232, 246, 258. THEORY OF OUR NATIONAL EXISTENCE. 469 Mr. Garfield's Position as a Revolutionist. charge with treason all who opposed their measures of government for being contrary to the written Constitution and the former conditions of political existence. 1 That this was Mr. Garfield's position on this occasion appears from his drawing a parallel between the control of the general Government by those who had " adopted " and should thereafter hold the conquering "ideas," and the es- tablishment of a new dynasty in England at the revolution of 1688, and by his placing all his party opponents, whether personally connected with the Southern Confederacy or not, in the position of those who in that revolution suffered for treason in adhering to the Stuarts, and those who in the American revolution of 1776 were known as Loyalists or Tories, for their adhesion to the crown. 2 1 In other words, Mr. Garfield claimed, in this instance, not that the supremacy of the general Government, in respect to all the States, wa8 established by the war, but that a revolution had taken place giving that supremacy to the party professing certain political and moral " ideas." In his speech of Jan. 28, 1864 ( see note below), he had claimed rights founded on revolution, for the government, by whomsoever supported. 2 This was not the first time Mr. Garfield had drawn these parallels, when attributing to the administration powers derived from a revolution. He advocated the Confiscation Acts, as justified by the customs of international law, as between alien enemies, and at the same time as municipal legislation against rebellious subjects. See remarks Jan. 28, 1864, 1st Sess. 38th Cong. Globe, 399-403. In this he was like many others. (Ante, p. 170.) But to sustain the last of these positions he reasoned from a supposed resem- blance between the situation of our government, and that of England in 1688, and that of the colonies in the Revolution. I have myself (ante, p. 223) indicated a resemblance between the position of Parliament in 1688, in reference to the succession to the throne, and that of Congress in reference to the reconstructed States ; but not intending to present either as revolu- tionary. I cited Macaulay's description of the conflict of opinion result- ing in harmony of action, as showing how studious were all who combined in calling a new occupant to the throne to avoid the position of revolution- ists. Mr. Garfield's comment on this action of Parliament is : " We are taught by this, that whenever a great people desire to do a thing which ought to be done, they will find the means of doing it." — Globe, 403. The inference from such arguments is that Mr. Garfield thought, at that time, that the rebellion could not be put down without usurpation on the part of the government, to be called " revolution " if successful. 470 THE QUESTION OF A BEVOLUTION. Mr. Garfield's Position as a Revolutionist. Mr. Garfield proceeded to say : — " Thus the defence and aggrandizement of slavery, and the hatred of abolitionism, became not only the central idea of the Democratic party, but its master passion. . . . Over against this was arrayed the Republican party, asserting the broad doctrines of nationality and loyalty, insisting that no State had a right to secede, that secession was treason, and demanding that the institution of slavery should be restricted to the limits of the States where it already existed. But here and there many bolder and more radi- cal thinkers declared with . . . that there never could be union and peace, freedom and prosperity, until we were willing to see John Hancock under a black skin." As Mr. Garfield was arguing on the proposition that a revolution of some sort had taken place, it must be inferred that he either regarded these doctrines of the Eepublican party as revolutionary, or supposed that the adminis- tration under the nominal leadership of that party had fol- lowed the path of revolution under the control of those " bolder and more radical thinkers." In view of such an alternative the importance of resort- ing to the " war of ideas " is easily seen. It serves to exculpate everybody from responsibility for revolutionary action, and at the same time confirms the criminality of those who opposed the persons actually engaged in effect- ing the change. Another method of escaping the incon- veniences of the revolutionary position, which is equally reasonable and which to many people seems more devout, has been to refer to the will of God the responsibility for following their own judgments, — a method often illus- trated by Mr. Lincoln's expressions, though framed in the shape of a disclaimer of personal merit. 1 1 In a letter to Colonel Hodges of Kentucky, dated April 4, 1864, after describing his position taken in an interview with Governor Bramlette and Senator Dixon, Mr. Lincoln wrote, " In telling this tale, I attempt no com- pliments to my own sagacity. I claim not to have controlled events, but confess that events have controlled me. Now, at the end of three years' THEORY OP OtTR NATIONAL EXISTENCE. 471 Mr. Garfield's Position as a Revolutionist. Afterwards, in the closing portions of his remarks, Mr. Garfield said : — " Mr. Chairman, ought the Republican party to surrender its truncheon of command to the democracy ? The gentleman from Mississippi says, if this were England, the ministry would go out in twenty-four hours with such a state of things as we have here. Ah, yes ! that is an ordinary case of change of administration. But if this were England, what would she have done at the end of the war? England made one such mistake as the gentleman asks this country to make when she threw away the achievements of the grandest man that ever trod her highway of power. Oliver Crom- well had overturned the throne of despotic power, and had lifted his country to a place of masterful greatness among the nations of the earth ; and when, after his death, his great sceptre was trans- ferred to a weak though not unlineal hand, his country, in a moment of reactionary blindness, brought back the Stuarts. England did not recover from that folly until in 1689 the Prince of Orange drove from her island the last of that weak and wicked line. Did she afterward repeat the blunder ? " For more than fifty years pretenders were seeking the throne, and the wars . . . till the cause of the Stuarts was dead. They did not change as soon as the battle was over, and let the Stuarts come back to power. " And how was it in our own country, when our fathers had tri- umphed in the war of the Revolution ? When the victory was won, did they open their arms to the loyalists, as they called themselves, or tories, as our fathers called them ? Did they invite them back ? Not one. They confiscated their lands. The States passed decrees that no tory should live on our soil. And when they were too poor to take themselves away, our fathers, burdened as the young struggle, the nation's condition is not what either party or any man desired or expected. God alone can claim it. Whither it is tending seems plain. If God now wills the removal of a great wrong, and wills also that we of the North, as well as you of the South, shall pay fairly for our complicity in that wrong, impartial history will find therein new causes to attest and revere the justice and goodness of God." In presenting "Nationality and Emancipation" as ideas acting in war like actual persons, Dr. Draper quotes in support of his theory this declara- tion of Mr. Lincoln as " embodying a profound philosophical truth, the result of his meditations on the war." — The Civil War, etc. iii. 642. 472 THE QUESTION OF A REVOLUTION". Mr. Garfield's Position as a Revolutionist. nation was with debt, raised the money to transport the Tories be- yond seas or across the Canada border. . . . " Now, I do not refer to this as an example which we ought to follow. 0, no. We live in a milder era." . . . After quoting a remark of John Adams, taken from a centennial address by Dr. Storrs : — " Now, Mr. Chairman, after all the fearful corruption of his time described by John Adams, our fathers never thought it necessary to call the tories back to take charge of their newly-gained liberties. " I will close by calling your attention again to the great problem before us. Over this vast horizon of interests, North and South, above all party prejudices and personal wrong-doing, above our battle hosts and our victorious cause, above all that we hoped for and won, or you hoped for and lost, is the grand onward movement of the republic. . . . "And until these great results are accomplished, it is not safe to take one step backward. 1 It is still more unsafe to trust interests of such measureless value in the hands of an organization whose mem- bers have never comprehended their epoch, have never been in sympathy with its great movements, who have resisted every step of it progress, and whose principal function has been ' To lie in cold obstruction Across the pathway of the nation.' " It is most unsafe of all to trust that organization when, for the first time since the war, it puts forward for the first and second place of honor and command men who, in our days of greatest danger, esteemed party above country, and felt not one throb of patriotic ardor for the triumph of the imperilled Union, but from the begin- ning to the end hated the war and hated those who carried our eagles to victory. 2 1 Record, 5186. Would it be wronging the speaker to suppose that he meant to imply that, even though the opposite party should prove to have a majority of the votes in the then ensuing elections, it would be the right or duty of the party representing his own ideas to retain the control of the ad- ministration by fraud or by force 1 2 It may be only fair to Mr. Garfield to remind those who are not fami- liar with the ordinary course of debate in Congress that these remarks were THEORY OF OUR NATIONAL EXISTENCE. 473 Theory of a revolutionary Change. " No, no, gentlemen ; our enlightened and patriotic people will not follow such leaders in their rearward march. Their myriad faces are turned the other way, and along their serried lines still rings the cheering cry, ' Forward ! ' till our great work is fully and worthily done." [Loud and continued applause.] That all of this school, at the present day, whether speaking as judges, jurists, statesmen, historians, or politi- cal philosophers, may justly be charged with resting their position, whether they acknowledge it or not, on a revo- lutionary change since 1861, is apparent from the fact that none have explained how a State's capacity to secede, or to carry on a war for that end, is less cognizable than before. So far as they have attempted this, it is by the assertion that the States in union are no longer sovereign in any degree; that is, that no State now holds even the "re- served " powers independently, but only as subordinate to a "National" (general) Government, which, as the highest visible representative of sovereignty, applies the Constitution as law acting upon people and States as its subjects. 1 But nothing approaching to a historical demonstration of this has been attempted by anybody. Everything that has been proffered for such a demonstration is, really, made in the committee of the whole on the state of the Union, in which case no particular motion is under discussion, and the members have a prac- tically unlimited field for debate. This speech was also delivered when a presidential election was in prospect, at which period speakers make the most of their opportunity to promote party triumphs. The remarks of Mr. Garfield might pass, with those of many others at that time, for ordi- nary electioneering rhetoric, and would not have been noticed here but for his present prominence. An argument very similar to that made in this speech appears as the basis of an article by Senator G. F. Edmunds, in the North Amerijan Review, January, 1881, "Controlling Forces in American Politics," from which it might be gathered that the war had settled questions of revenue and economical policy in accordance with the " ideas " of a cer- tain party controlling the Administration, i Ante, pp. 341-347. 474 THE QUESTION OF A REVOLUTION. Nation and Empire as antagonistic Terms. nothing beyond the older assertion of the superiority of the nation as a mass of individuals over the politically organized States, — a superiority resulting, practically, in the supremacy of the general Government. How this superiority of the nation is to be otherwise manifested is not told, unless by the use of certain adjec- tives, such as "imperial " as applied to the nation or the people as a mass. But by whom, or in what way, imperi- alism is to exhibit itself is left to the imagination. That the imagination of some writers has been strongly excited by the magnitude and somewhat sanguinary com- plexion of the hitherto novel experiences of this country during the war, may be inferred from the manner in which they have agreed in alluding to Rome, as an exemplar which this nation or people of the so-called United States is to resemble, to rival, and to surpass. 1 As I have understood the modern use of the words in political science, " empire " and " nation " represent two essentially antagonistic forms of political existence. And, as I have read history, nothing could be more unlike than the conception of the Roman state, either as republic or as empire, and any situation hitherto occupied by the politi- cal personality known as the United States. The idea conveyed by the word " nation " is altogether 1 Mr. Pomeroy, Const. Law, § 57: — " The people of the United States, — that new-born Nation destined . . . until, being made perfect by suffering, it shall wield an influence over humanity even surpassing that exerted by the deathless empire of Borne." See also in Mr. Jameson's Const. Conven- tion, § 33, an elaborate attempt to find a parallel in the history of Rome with the prospects of the United States. Dr. Draper, Civil War, etc. iii. 675 : — " The mind of the nation recognizes that it is the destined successor of Rome," and in Thoughts on the Future Civil Polity of America, p. 86 : — " No European nation can serve us as an example, for none has encountered a problem so complicated and so vast. The nearest approach to its solution was made by the Roman Empire." And ib. introd. 9. "An imperial power has come into existence before our eyes. . . . There is before it a career of unparalleled grandeur, a splendid history, to be wrought out on a greater scale than that of Rome." THEORY OF OUR NATIONAL EXISTENCE. 475 Nation and Empire — how understood. a modern one, developed since the decline of the feudal system in Europe. The Romans knew nothing of " na- tions " in this sense of the word. The Roman people, populus Romanus, that is, those who held the privileges of the city of Rome, never called themselves a nation, in any sense. The same may be said of all those with whom they engaged in war or recognized as " friends of the Roman people." They were more or less definite collec- tions of various tribes, communities, or gentes, in the ori- ginal sense of the word gens, whose corporate existence generally depended on the continuance of some city (civi- tas~), in accordance with the ideas of all the Mediterranean States of antiquity ; as was the case with those known to the Romans as the Carthaginians (Cartaginienses'). 1 The title " emperor " has, since the days of the first Ncipoleon, been sometimes used to designate the occupant of a position in the state not essentially different from that more commonly understood as the position of a king. But " empire " involves the idea of a political personality holding sovereignty, by right above law, which is exercised not merely over the people of a nation, but over other political personalities holding political power in a subject relation to such empire. Nationalism and Imperialism are therefore in opposition, as political principles. 2 It would be interesting, at least, to know whether the writers referred to propose that the empire which they anticipate shall be exhibited in the subjection of the States, as political personalities, to the individuals elected 1 For an essay of this sort there can be no better authority on this than that of Dr. Lieber, who was a leading advocate for the theory of nationalism as an idea controlling all modern political life. See fragments on " Na- tionalism," etc., in Vol. II. of his Miscellanies, pp. 222-242 ; and compare E. Mulford's The Nation, Ch. XVIII. 2 "As despotic monarchs claiming the world for their realm, the Teutonic emperors strove from the first against three principles, over all of which their forerunners of the elder Rome had triumphed, — those of Nationality, Aristocracy, and Popular Freedom." — Bryce's Holy Roman Empire, 391. 476 THE QUESTION OF A REVOLUTION. Question of the Place of Supreme Power. by the votes of their citizens, under existing forms of law to constitute the government at Washington. If any of them take the position of instructors in public law to the generation advancing to act in political life, they may justly be expected to declare themselves more explicitly. If, however, they look to the coming empire as some- thing to be exhibited in the political dominion of the United States over adjacent populations and countries now distinct and independent, it is a matter of prophetic vision which is not included in the scope of this essay. 1 It is, however, true that empire, imperium, in the early sense of the Latin word, exists in every country of neces- sity, and its possessors must be known in each country wherein civil government is preferred to anarchy. It is not enough that the forma regiminis should be generally understood. To avoid civil dissensions, and fratricidal wars, it is even more essential that the forma imperii should be clearly recognized. 2 As illustrating our own need of making this an object of general knowledge, I cite from remarks made by Mr. Garfield in the House, on an occasion not long before his nomination as candidate for the presidency. These will at the same time illustrate the practical political impor- tance of many of the other distinctions which have herein been pointed out. On the 27th June, 1879, during the extra session of the Fort} T -sixth Congress, the House, being in committee, was considering the bill making appropriation to pay the fees of United States marshals and their general depu- 1 K. Hillebrand, Lectures on German Thought, p. 288 : — " The new Ger- man patriotism, which is not to be confounded with the old Prussian, was not, and is not naif. It is conscious ; it is intentional; it has a tincture of pedantry because it has been made by scholars and literary men." A paral- lel may suggest itself to the American reader. 2 Ante, pp. 293, 302. THEORY OF OUR NATIONAL EXISTENCE. 477 Mr. Garfield's Remarks, June 27, 1879. ties. 1 In the course of the debate, Mr. Garfield re- marked : 2 — . " The majority in this Congress 3 have adopted what I consider very extreme and dangerous opinions on certain important con- stitutional questions. They have not only drifted back to their old attitude on the subject of State sovereignty, but they have pushed that doctrine much further than most of their predecessors ever went before, except during the period immediately preceding the war." Mr. Garfield proceeded to cite, from the official reports of the debates, certain " declarations of seven distin- guished members [senators] of the present Congress," of which he said : — " They set forth what may be regarded as the doctrines of the Democracy as represented in this Capitol." These doctrines Mr. Garfield afterwards summarized as follows : — " They are in brief: first, there are no national elections ; second, the United States has no voters ; third, the States have the exclusive right to control all elections of members of Congress ; fourth, the Senators and Representatives in Congress are State officers, or, as they have been called during the present session, ' embassadors ' or ' agents ' of the States ; fifth, the United States has no authority to keep the peace anywhere within a State, and, in fact, has no peace to keep ; sixth, the United States is not a nation endowed with sovereign jDower, but is a confederacy of States ; seventh, the States are sovereignties possessing inherent supreme powers. They are older than the Union, and, as inde- pendent sovereignties, the State governments created the Union, and determined and limited the powers of the general Govern- ment." 1 H. R. No. 2382. The matter in controversy being the constitutionality of the provisions of the statutes relating to elections for Representatives, which have been mentioned, ante, p. 386. 2 Congressional Record, 46th Congress, p. 2388. 8 The majority at that time, both in the House and Senate, being with the opposite party. 478 THE QUESTION OF A REVOLUTION. Mr. Garfield's Remarks, June 27, 1879. The speaker proceeded to indicate certain political measures of government which his opponents had advo- cated, and which he regarded as illustrating the practical bearing of these doctrines. Mr. Garfield afterwards stated " briefly the counter- propositions." To the reader of the preceding pages there will be nothing novel in these, and they are cited here mainly with reference to remarks of the same speaker on another occasion, to show his combination of the his- torical with the revolutionary basis. His propositions were : — " I affirm, first, that the Constitution of the United States was not created by the governments of the States, but was ordained and established by the only sovereign in this country, the common superior both of the States and the nation, — the people them- selves ; second, that the United States is a nation, having a govern- ment whose powers, as defined and limited by the Constitution, operate upon all the States in their corporate capacity, and upon all the people ; third, that by its legislative, executive, and judicial authority the nation is armed with adequate power to enforce all the provisions of the Constitution against all opposition of indi- viduals or of States, at all times, and all places within the Union." For the purpose of this essay it is immaterial whether the summary given by the speaker of the positions taken by his political opponents was just or unjust. Intrinsi- cally, as logical statements of doctrine, or historical de- scriptions of fact, that summary, and that afterwards given as " counter-propositions," are beneath criticism, from their vague, inconsistent, and misleading use of words. Like many other attempts in the same direction, they are not, either of them, more false than true, or more true than false. The speaker then followed with a brief historical state- ment, to use his own words, of " the constitutional his- tory of this country, or rather the history of sovereignty and government in this country," which he distinguished as " comprised in four sharply defined epochs." THEORY OF OUR NATIONAL EXISTENCE. 479 Mr. Garfield's Remarks, June 27, 1879. Of the periods so discriminated, the second is the most material, because determining all those following. In describing this period, the theory of sovereignty in the nation as a mass, and the history of the inception of that sovereignty, is asserted in these words : — " Second, on the 4th day of July, 1776, the people of those col- onies, asserting their natural right as sovereigns, withdrew the sovereignty from the Crown of Great Britain, and reserved it to themselves. In so far as they delegated this national authority at all, they delegated it to the Continental Congress assembled at Philadelphia. That Congress, by general consent, became the supreme government of this country, — executive, judicial, and legislative in one. During the whole of its existence it wielded the supreme power of the new nation." In consequence of a similar exertion of sovereignt}' the people, so the speaker stated, established the government of the Confederation, and afterwards ordained and estab- lished the Constitution. 1 Mr. Garfield, in order to sustain his position, commenced by taking the proper and only legitimate method to sus- tain his position, appealing, not to authorities, as a lawyer, but to facts, as an historian. This is in accordance with the method pursued in this treatise, and the only question is, here, whether the facts actually were as Mr. Garfield has represented them. He said : — " That no one may charge that I pervert history to sustain my own theories, I call attention to the fact that not one of the colo- 1 As remarked hereinbefore (p. 323, note), with regard to language of Mr. Jameson, anybody who is endowed with the courage to present such a state- ment as history is impregnable. And yet Mr. Garfield, on this same occa- sion, referring to decisions of the Supreme Court, could say (Record, p. 2390), " Chief Justice Marshall, that great judge, who found the Constitution paper, and made it a power, who found it a skeleton, and clothed it with flesh and blood. By his wisdom and genius he made it the potent and bene- ficent instrument for the government of a great nation." Here is not only a recognition of the fetish, but also evidence that the manufacturers, like makers of idols of brass, wood, and stone, set their private mark on their handiwork. 480 THE QUESTION OF A REVOLUTION. t. Mr. Garfield's Method of proving a Fact. nies declared itself free and independent. Neither Virginia nor Massachusetts threw off its allegiance to the British crown as a colony. This great declaration was made not even by all the col- onies as colonies, but it was made in the name and by the authority of ' all x the good people of the colonies ? as one people." These sentences present another illustration of that ten- dency, in all controversy on this subject, to state doctrine as if it were history, which has herein already been noticed. 2 Mr. Garfield's statement is, apparently, that the colonies, as so many distinct political corporeities, were not the actors in effecting what we call the independence of the United. States. His idea must be that the series of public acts which are recorded in every history of the United States as the acts of the pre-existing political organizations known as colonies, and afterwards as States, were not their acts at all ; but, in spite of appearances and the record, were performed by a totally different set of actors. As no proof of this is offered, the statement is merely that such is his doctrine; or that his doctrine requires such a view of history. Instead of showing a fact, he appeals to what, at the best, is only the record of a fact, and which is to be compared with other records. Like all of this school, he relies on the words of the Declaration, which, even if they could bear such an interpretation, are not of the slightest value as against the fact as it stands, — the fact that, except as the political people of each colony acted in their corporate capacity, there was no " good people of the colonies " to act at all. 3 Mr. Garfield proceeded to fortify his position by citing 1 The word " all " is introduced in the report of the debate by inad- vertence, it must be supposed either of the speaker or the reporter, as it is not so in the Declaration. 2 Ante, p. 99. 3 Compare the argument on the words in the Preamble to the Constitu- tion {ante, pp. 108-113) ; also Ch. IV., and pp. 337, 338. THEORY OF OUR NATIONAL EXISTENCE. 481 Mr. Garfield's Appeal to other Opinions. four leading " names " as sustaining his own view of history. As to some of these he was, I think, misled, as so many others have been, by his own preconceptions of the events, and still more by the double meaning of the phrases by which the} r have been described. The first of these " names " or authorities, if they may be called such on a question of evidence, is an opinion which, as I read it, does not sustain that view of the facts. It is an opinion, indeed, which I claim as one agreeing with the view maintained in this essay, — that the States, being united, as matter of political fact, at the moment of their declaration of their independence, were, as united politi- cal personalities, — "the union," the sovereign, — the United States. Mr. Garfield said, — " Let me fortify this position by a great name, that will shine for- ever in the constellation of our southern sky, — the name of Charles Cotes worth Pinckney of South Carolina. He was a leading mem- ber of the Constitutional Convention of 1787, and also a member of the Convention of South Carolina which ratified the Constitution. In that latter convention the doctrine of State sovereignty found a few champions, and their attempt to prevent the adoption of the Constitution, because it established a supreme national govern- ment, 1 was rebuked by him in these memorable words." Pinckney's argument was founded on the language of the Declaration of Independence. The quotation given by Mr. Garfield is from the report in Eliott's Debates, as follows : — 1 The speaker's method of demonstration agrees with that of Story and the whole school. On a question of fact, the opinion of one member of a State convention, supposed to support the speaker's view, is selected as forti- fying his position, and that of other members dismissed, because it does not. Mr. Garfield here also assumes that those who voted to adopt the Consti- tution understood it as he does, and as incompatible with the idea of federa- tion between sovereign States, — which is another practical begging the question, as well as an inference well-known to be contradicted by the his- tory of each State which adopted the Constitution. 482 THE QUESTION OF A REVOLUTION. Mr. Garfield's Citation of Pinckney. " This admirable manifesto, which for importance of matter and elegance of composition stands unrivalled, sufficiently confutes the honorable gentleman's doctrine of the individual sovereignty of the several States. In that declaration the several States are not even enumerated, but after reciting in nervous language our right to independence and the tyranny which compelled us to assert it, the declaration is made in these words, — ' We, therefore, the representatives of the United States of America, in General Con- gress assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the name and by the authority of the good people of these colonies, solemnly publish and declare that these United Colonies are, and of right ought to be, Free and Independent States.' The separate independence and individual 1 sovereignty of the several States were never thought of by the en- lightened band of patriots who framed this declaration. The several States are not even mentioned by name in any part of it, as if it was intended to impress this maxim on America. — that our freedom and independence arose from our union, and that without it we could neither be free nor independent. Let us, then, consider all attempts to weaken this union, by maintaining that each is separately and individually independent, as a species of political heresy, which can never benefit us, but may bring on us the most serious dis- tresses." Pinckney's interpretation of the language of the Decla- ration accords with the facts as they appear in history. " Our union," " this union " is here obviously equivalent to our States, being united. In the school of Story, or of his modern disciples, " union " is not the States united, nor 1 Mr. G. T. Curtis, History of the Constitution (I. p. 455), says, "Pinckney entered the convention with a desire to adhere, if possible, to the charac- teristic principles of the Confederation." Mr. Curtis must suppose Pinck- ney to have at least recognized the States as personalities then holding the political power, even if he afterwards acquiesced in a consolidation under a constitution. The italics in the above citation of Pinckney's language are mine. As it stands in 4 Elliot's Debates, p. 801, the words FREE AND INDEPENDENT STATES are printed in capitals, and so stand as en- grossed in the original Declaration, signed Aug. 2, 1776 (Am. Archives V. p. 1598), — a circumstance which may be important to a school whose main argument is in writing " National " with a big N. THEORY OF OUR NATIONAL EXISTENCE. 483 Other Names cited bj' Mr. Garfield. the United States, but only a name for something repre- sented solely by a National government. Their interpre- tation of the words " in the name of the good people of these colonies " does not accord with the facts. As has herein been said with reference to a similar argument from the language of the Constitution, as this is a question of history, the words of the Declaration are not of the slight- est value as compared with the undisputed facts. 1 Mr. Garfield proceeded to say, — u For a further and equally powerful vindication of the same view, I refer to the Commentaries of Judge Story, Vol. I. p. 197. " In this same connection, and as a pertinent and effective re- sponse to the Democratic doctrines quoted in the outset, I quote from the first annual message of Abraham Lincoln, than whom no man of our generation studied the origin of the Union more pro- foundly. He said ' Our States,' " etc. As I have already herein remarked, more than once, I do not pretend to know what Judge Story understood by " the Union " and by " the people of the United States " ; 2 and, whatever he may have understood by those terms, his opinion on a question of history is no more testimony as to the facts than is the opinion of anybody else. Mr. Lincoln's language I have already cited, 3 as indi- cating that he perhaps accepted that view of the facts which I have sustained as the true one. Mr. Garfield ended his climax of "names" as fol- lows : — " In further enforcement of the doctrine that the State govern- ments were not the sovereigns who created this Government, 4 I 1 Ante, p. 130. 2 Ante, p. 109. 3 4„ tej p . 142. 4 If it did not escape observation, by having become one of its common- places, it might be called one of the sophistries of this school, that they charge their opponents with attributing sovereignty to the State governments ; that is, — to the persons elected by the voters in each State, for fixed periods of time, to administer the executive, legislative, and judicial powers, as if they had no other idea of the State which they speak of as one of a confederation. 484 THE QUESTION OF A REVOLUTION. James Wilson cited by Mr. Garfield. refer to the great decision of the Supreme Court of the United States in the case of Chisholm v. The State of Georgia, reported in 2 Dal- las, — a decision replete with the most enlightened national spirit, in which the court stamps with its indignant condemnation the notion that the State of Georgia was ' sovereign ' in any sense that made it independent of or superior to the nation. " Mr. Justice Wilson said, ' As a judge of this court, I know, and can decide upon the knowledge, 1 that the citizens of Georgia when they acted upon the large scale of the Union as a part of the " people of the United States " did not surrender the supreme or sovereign power to that State ; but, as to the purposes of the Union, retained it to themselves. As to the purposes of the Union, therefore, Georgia is not a sovereign State. . . . Whoever con- siders in a combined and comprehensive view the general texture of the Constitution will be satisfied that the people of the United States intended to form themselves into a nation for national pur- poses. They instituted for such purposes a National Government complete in all its parts, with powers legislative, executive, and judiciary, and in all those powers extending over the whole nation. Is it congruous that, with regard to such purposes, any man or body of men, any persons, natural or artificial, should be permitted to claim successfully an entire exemption from the jurisdiction of the National government ? ' " Thus far Mr. Garfield in his citation of this case, — the cheval de bataille of his school. Whether a decision ren- This is a misrepresentation of the State-rights doctrine, which recognized " the people " of each State, in some sense or other, distinguished from "the government," as the holder of supreme power. Compare ante, pp. 121, 124, n. 1 It would seem that Judge "Wilson thought himself qualified by his office to decide upon the historical question where that sovereignty was located which gave him his commission. This was evidently beyond the capacity of the judicial function, [Ante, p. 5.) As a citizen, he was obliged to recognize some sovereign before he could, as a judge, apply the Constitution as law. In the opinion here cited Wilson argues as if the posi- tion of a State of the United States were determinable from the Constitution itself, as law ; " taking a combined and comprehensive view," whatever that may be. But Mr. Garfield presents the same opinion as authority on a ques- tion of fact antedating both the Constitution and the Confederation, that is, whether the States held sovereignty in 1776. And on this question Wilson's testimony is against Mr. Garfield's view, as will appear from what follows, post, pp. 485-487. THEORY OF OUR NATIONAL EXISTENCE. 485 Meaning of Judge Wilson's Statement. dered in a case in which the Supreme Court appears in the position of utter failure on the point of actual power can be called a " great decision " must be a matter of taste. The validity of the claims made for the opinions in this case, as judicial authority on a question of political fact, have already been considered. 1 I have alreadjr argued that the opinions delivered in this case have no political value, because the decision of the court never had any effect on the matter in controversy. 2 But, conceding all the prestige claimed for that of Judge Wilson, it is not at all clear from the passages cited that they indicate that view of history in support of which they were quoted by Mr. Garfield. It is not by any means ap- parent, in this opinion, that Judge Wilson did not recog- nize the citizens of Georgia — either the whole population or the voters — as constituting a sovereign " people," or a sovereign State. The passages cited may support the idea that they, as holders of all the powers of sovereignty in and for their State, when they adopted the Constitution, made a division of them, granting or delegating some to a State government, and reserving others, to be granted or delegated by them, separately, or simultaneously with a like grant from other States, to a Government for those purposes which Wilson here called " National." But if Judge Wilson was here cited for his " name " or reputation, and not merely as a judge on the bench, we may recall the fact that he has left other records of his opinions on this subject. Mr. G. T. Curtis devotes Chapter XIV. of Book III. of 1 Ante, p. 137. Mr. Garfield's argument was made in the course of a heated debate, but it compares well, for intrinsic force, with any more deliberately composed by jurists of the same school. It equally justifies the remark of the English critic, that the argument rests " on the reputation of its advocates " (ante, p. 312, n. 3), and it equally illustrates how the reputation of its advo- cates rests upon their adoption of the argument. 2 Compare ante, p. 138. 486 THE QUESTION OF A DEVOLUTION. G. T. Curtis's View of Wilson's Theory. his work on the History of the Constitution to a sketch of Wilson and a statement of his views, and says of him, Vol. I. p. 463 : — " During the war he had always considered the States, with respect to that war, as forming one community 1 and he did not admit the idea that when the Colonies became independent of Great Britain, they became independent of each other. 2 From the Dec- laration of Independence he deduced the doctrine that the States by which that measure was adopted were independent in their confederated character and not as individual communities. This rather subtile distinction may seem now to have been of no practical moment, 3 since the confederation had actually united the States as such, rather than the inhabitants of the States." The remainder of Mr. Curtis's account of Wilson's views relates to his conception of the transaction called the adop- tion of the Constitution. 4 But if Mr. Curtis has here given a correct description of Wilson's view of the history of the States before that event, his name cannot be in- voked to support Mr. Garfield and the modern nationalists in their attribution of sovereignty to the mass of the in- habitants of the thirteen colonies at the Revolution. I think I may fairly claim that, on the contrary, Wilson's opinion supports the view presented in this essay. The weak point of his conception of the circumstances was one common to all the theorists of his time, 5 and is found 1 Refers to Madison, Elliot, t. 78. 2 Refers Ibid. 213. 3 But compare ante, p. 128. . 4 Mr. Curtis has also given extracts from Wilson's speech on the adoption of the Constitution. They seem to agree with the view sustained by Mr. Curtis, of a perpetual grant by the States, to somebody, of a portion of their sovereignty. Compare ante, pp. 101, 102. 5 Compare ante, pp. 122, 124, and see the citations from Chisholm v. Georgia, ante, p. 329, n. In a Centennial Address, July 4, 1876, at New York, the Eev. R. S. Storrs, Jr., said (p. 21), " There was certainly nothing of the ideal heroic among the ante-revolutionary people of this country. They did not live for sentiment or on it. They were not doctrinaires, though they are sometimes so represented." The orator might have said truly that even the leaders, THEORY OF OUJEt NATIONAL EXISTENCE. 437 Substance of Mr. Garfield's Propositions. in this, — that he attributed the possession of sovereignty, a priori, to all the inhabitants of a certain district called " a State," though he was conscious, a posteriori, that is, by knowing what took place every day before his eyes, that only a portion of these, a comparatively few individuals, determined by laws derived from themselves corporately, actually, as voters, held all the political power that was to be held. The distinction, made by Wilson, of the States as holding sovereignty only in union is, in my opinion, that which gives the key to our political existence. But if sovereignty is attributed a priori to all the inhabitants of a State, it would be a " rather subtile distinction," as Mr. Curtis calls it : for there would be no reason, a priori, why the whole mass of the inhabitants of the country, in- stead of thirteen separate masses, should not be considered the possessor of sovereignty. To have any consistency as a statement of political doc- trine, the " counter propositions " offered 1 by Mr. Garfield must be understood to mean that " the Union," which is therein called permanently supreme, is not found in the so-called " fathers and founders," were not doctrinaires in reality, though they constantly so represented themselves, and really supposed that they were such. Compare ante, pp. 297, 314. 1 On the 13th January, 1865, in a debate on a proposal for a constitutional amendment to prohibit slavery, Mr. Garfield had presented the same theory of sovereignty of the entire population as one mass, stating "that the mo- ment the revolutionary Congress assumed national prerogatives, and the people by their silence consented, that moment the people of the colonies con- stituted a nation and that revolutionary Congress was the authorized Gov- ernment of that nation. But the Declaration of Independence was 'by the authority of the good people' and hence it was their declaration. . . . The sovereignty of this people was first lodged in the revolutionary Congress, and it continued there until the 1st day of March, 1781, when they lodged it in the Articles of Confederation. They established then a confederacy properly so-called. ... On the 21st day of June, 1788, a new lodgment of thin sovereignty of the American people was made. It was then lodged in this Constitution," etc. Cong. Globe, 2d Sess. 38th Cong. p. 264. This argu- ment, or method, of knowing the will of a sovereign people from " their silence" resembles that from "acquiescence and obedience of the people," ante, pp. 316, 348, n. 488 THE QUESTION OF A REVOLUTION. Conversation of Bismarck and Grant. the States in their voluntary union, but in a government regulated by its own interpretation of a written Constitu- tion, supposed to act of its own intrinsic authority as a law for States and natural persons, without reference to any political choice on the part of those States which are known in international relations as " the United States," 1 and that the only sovereign external to that Constitution is a hypothetical nation, whose will is known only by the action of the political party controlling the general Gov- ernment in accordance with this theory. For auy who have followed the argument of this essay it will be, I hope, superfluous to remark that I regard this statement of history as entirely baseless, and this statement of political doctrine as contradicted by the actual political experiences of the country ; unless what has happened since 1861 records a revolutionary change in the seat of sovereign power. 2 But such a statement is only one illustration among many of the consequences which the theory attributed to Story and Webster, and now represented by Mr. Pomeroy and others, already cited, involves, and which are exposed when that theoiy is used to explain the events of the war and of the Reconstruction era. The following conversation is reported to have taken place between General Grant and Prince Bismarck, the Chancellor of the German Empire. 3 1 That the States are so recognized, see ante, pp. 315-319. 2 When Mr. Garfield had finished his remarks on this occasion, Mr. Frank H. Hurd, also a member from the State of Ohio, obtaining the floor, said, " My colleague has seen fit to enter upon a disquisition as to the nature of the Federal government and the relations of the States to that government under the Constitution which they created. Never, in all my studies of the political history of this country, never, in all my knowledge of the political debates which have taken place in the Congress of the United States, have I heard such views of consolidation advanced as have been suggested to-day by that gentleman." Cong. Record, 46th Cong. pp. 23-90. 3 June, 1878, Around the World with General Grant, by J. R. Young, Vol. L p. 416. THEORY OF OUR NATIONAL EXISTENCE. 489 Language of Grant and Bismarck. " ' Yes,' said the Prince, ' you had to save the Union, just as we had to save Germany.' " ' Not only save the Union, but destroy slavery,' answered the General. " ' I suppose, however, the Union was the real sentiment, the domi- nant sentiment?' said the Prince. " ' In the beginning, yes,' said the General ; ' but as soon as slavery fired upon the flag, it was felt — we all felt, even those who did not object to slaves — that slavery must be destroyed. We felt that it was a stain to the Union that men should be bought and sold like cattle.' " It is not an unreasonable inference from this dialogue that the questioner understood the subject somewhat better than did the respondent. But this does not appear so much from the former's mention of saving the Union, as being the main, object of the war, as from his supposing a parallel in it with the experiences of Germany. The phrases " to save Germany " and " to save the Union" are each figures of speech, and, as such, necessarily liable to mislead. The expression that our civil war was a war to preserve the Union is especially deceptive. It has been generally understood as meaning that the object of the war, as carried on under the leadership of the general Government, was to compel eleven States, as so many distinct political personalities, to remain united with other similar States, from which they desired to separate themselves. The object of this essay has been to show that this end was not the end needed, and, moreover, that, as matter of fact, it was not the result attained. The Union did not require saving, in that sense ; because, if saved in that sense, it was not a union at all. For, in that sense, it was subjugation of one set of States by an- other, and the possibility of any rebellion or treason on the part of anybody in those eleven States was excluded. 1 The Union did not require saving, because the United 1 Compare ante, p. 286, concluding chapter viii. 490 THE QUESTION OF A REVOLUTION. Meaning of " Saving the Union." States were to be found in those States exclusively which continued in the former voluntary union, in which alone each and any or every State had been, or could continue to be, a State of the United States. - But the Union was to be saved in this sense, — that the sovereignty of the United States, that is, of the States con- tinuing in their voluntary union (not the authority of the general Government, except as their agent, still less of the Constitution as a self-existing law) was to be maintained throughout the whole domain wliich had ever been under that sovereignty, — a domain identical with the whole domain of the United States when those eleven States were participants of the same sovereignty. 1 In the same sense, Germany had to be saved, or was saved, because a political personality, or aggregate of political personalities, at the head of which was the King of Prussia, maintained and extended their political au- thority thoughout the country which is now known as the German Empire ; not only over the domain which they had held severally before the war, but over the outlying domains of other political personalities, who were treated by them as having abdicated or dispossessed themselves of authority in those territories which, as sovereigns of a united Germany, the King of Prussia and his allies claimed as parts of one country under their dominion. Supposing this parallel in the mind of the German who had been the chief instrument in effecting this saving Ger- many by making Prussia or its hereditary dynasty the sove- reign of a Germany so saved, one may understand what. Bismarck meant by saying — " you had to save the Union" and " the Union was the dominant sentiment." Any European statesman would know that if the war in America was a civil war, — not an international war, nor yet a huge riot, — there was necessarily some actual political personality, who might be one natural person, or a collection 1 Ante, p. 145. THEORY OF OUR NATIONAL EXISTENCE. 491 Truth in Earl Russell's Expression. of natural persons holding sovereignty as a unit, who, as sovereign, was putting down the resistance of rebellious subjects, — not subject states, but subject natural persons. He would know, moreover, that the question whether slavery was good or bad, whether it was morally right or wrong " to buy and sell men like cattle, " had nothing to do with the questions of allegiance, treason, and rebellion. Earl Russell at the beginning of the war said, " The struggle is now felt to be one for independence on the part of the South, and for empire on the part of the North." This terse expression was essentially true. For the North- ern States, being " The United States," contended to main- tain their sovereignty, their imperium, in the original sense of the word, which applies as well to republics as to mon- archies. 1 The populations of the South contended to break from this imperium and to make for themselves a confede- racy of independent States. There would have been no mystery about this, if explained to any European publicist. Can it be inferred from the replies of the American Gen- eral, that, if " the flag" had been " fired upon " from the soil of a non-slave-holding State, he could not have told who or what directed the shot, or would have been at a loss to know what were his obligations as a soldier ? Can it be that he regarded himself as having been only the military chief of a crowd of citizens in arms, known simply as " we, " who, being individually opposed to slavery, were knocking others in the head because they differed from them about M buying and selling men like cattle " ? The man who sheds the blood of his fellow-men without the warrant of a political sovereign, simply to make others accept his own ideas of political or social justice, is, by the common jurisprudence of the world, an outlaw on land and a pirate by sea. 2 1 Compare Dr. Maine, ante, p. 329. 2 Yet upon this basis Mr. Garfield appeared to wish to rest, in his speech 492 THE QUESTION OF A REVOLUTION. View in Stephen's Liberty, Equality, and Fraternity. If this was the true view of our case, the war was a huge riot, and Carlyle was justified in comparing it to the burn- ing out of a foul chimney. That the conflict of opinions in individual minds, as to the desirability of nationality or its opposites, or as to the moral aspect of slavery or its contraries, had nothing to do with the essential question of the right of the government at "Washington to resist secession as rebellion, — appears from the fact that their opinions on these points determined the sympathies of outside observers, who did not under- stand the real political situation, but who regarded our civil war as essentially an international war, — a war between two sets of states, equally capable of belligerency, because equally independent in respect to each other. It is highly probable that this has been the view gen- erally accepted in England, 1 and, though I do not feel cer- tain as to the author's own conception of our case, I refer to Sir James Fitzjames Stephen's " Liberty, Equality, and Fraternity " as showing the probability of this, in some pas- ages which I propose to cite, not for this only, but as also showing the true meaning of such phrases as " settled by the war" and ultima ratio regum, when used to explain a civil contest. In the fourth chapter, entitled " The Doctrine of Liberty in its Relations to Morals," this author (page 164 of the American reprint) observes : — " I have now said what I had to say on the action of law and of public opinion in regard to the encouragement of virtue and the pre- vention of vice. . . . June 27, 1879, notwithstanding his argument from history. He said, " But the truth requires me to say that there is one indisputable ground of agreement on which alone we can stand together, aud that is this : — the war for the Union was right, everlastingly right, and the war against the Union was wrong, everlastingly wrong." Cong. Eec. 46th Cong. p. 2390. 1 How far Mr. G. T. Curtis may have succeeded in convincing his English friends of the rights of the matter by his theory of the divisibility of sove- reignty I do not pretend to judge. Compare ante, p. 299. THEOEY OF OUR NATIONAL EXISTENCE. 493 Sir James Stephen on Force in National Relations. " Before taking leave of this part of the subject, I will make some observations upon a topic closely connected with it, — I mean the compulsion which is continually 'exercised by men over each other in the sternest of all possible shapes, — war and conquest. The effect of these processes upon all that interests men as such can hardly be overrated. War and conquest determine all the great questions of politics and exercise a nearly decisive influence in many cases upon religion and morals. We are what we are because Holland and England in the sixteenth century defeated Spain, and because Gus- tavus Adolphus and others successfully resisted the Empire in Northern Germany. Popular prejudice and true political insight agree in feeling and thinking that the moral and religious issues de- cided at Sadowa and Sedan were more important than the politi- cal issues. Here, then, we have compulsion on a gigantic scale producing vast and durable political, moral, and religious effects. " "When, however, we come to consider the relations of independ- ent nations to each other, a totally different set of considerations present themselves. Nations have no common superior. Their relations do not admit of being defined with the accuracy which the application of criminal law requires, nor, if they were so defined, would it be possible to specify or to inflict the sanctions of criminal law. The result of this is that nations always do consider for themselves in every particular case as it arises how their interests are to be asserted and protected, and whether or not at the expense of war. Even in the case of such references to arbitration as we have lately seen this is true. The arbitrators derive their whole author- ity from the will of the parties, and their award derives its authority from the same source. " Such being the relations between nation and nation, all his- tory, and especially all modern history, shows that what hap- pens in one nation affects other nations powerfully and directly. Indeed, the question what a nation is to be — how much or how little territory, how many or how few persons, it is to com- prehend — depends largely on the state of other nations. A territory more or less compact, inhabited by a population more or less homogeneous, is what we mean by a nation ; but how is it to be determined where the lines are to be drawn ? Who is to say whether the Rhine or the Vosges is to divide France from 494 THE QUESTION OE A REVOLUTION. Sir James Stephen on Force in International "War. Germany ? — whether the English and the Welsh, the Scotch and the Irish, are or are not homogeneous enough to form one body politic? To these questions one answer only can be given, and that is, Force, in the widest sense of the word, must decide the question. By this I mean to include moral, intellectual, and physical force, and the power and attractiveness of the beliefs and ideas by which different nations are animated. All great wars are to a greater or less extent wars of principle and sentiment ; all great conquests embrace more or less of a moral element. Given such ideas as those of Protestants and Catholics in the sixteenth century suddenly seizing upon the nations of Europe, religious wars were inevitable ; 1 and in estimating their character we must take into account not merely the question, Who was on the offensive ? Who struck the first blow ? but much more the question, Which of the conflicting theories of life, which of the opposing principles brought into collision, was the noblest, the truest, the best fitted for the de- velopment of the powers of human nature, most in harmony with the facts which surround and constitute human life ? " I think it appears clearly from the above, as well as from the whole tenor of the author's remarks in this connection, that he is speaking of the moral justification of war properly so called, — ivar looked upon as an international relation. His reference is to wars carried on by one legitimate pos- sessor of political power against another legitimate pos- sessor of political power ; wars which may result in the subjugation or conquest of one of the parties belligerent by the other ; wars which may be followed by a change of dominion, a transfer of territory and population from the rule of one political sovereign to that of another. He is speaking of wars which, whatever may be the motives, desires, or hopes of the contending parties, are carried on without any question of the duty of the subjects or citizens 1 These wars were none the less international wars, wars between polit- ical organizations or states of some kind. They were not wars between so many thousand Catholics and so many thousand Protestants. Their re- spective creeds did not determine the political obligations of the citizens or subjects of the different states engaged in these wars. THEORY OF OUR NATIONAL EXISTENCE. 495 Sir James Stephen on the American Civil War. of each towards their respective sovereigns, or states, as the parties conducting the war ; of wars which, even if they can be called religious wars, or wars of sentiment, are wars from which all ideas of revolution, on the part of the prevailing party, and of rebellion, on the part of the defeated party, are absolutely excluded. He is speaking of force or compulsion ; and in this place he distinguishes it from the force or compulsion which he had been indicating as the foundation of law, — that force or compulsion which is the foundation, according to his belief, of each and every state, nation, or political com- munity, as distinguished from foundations in the consent of the governed or in Mr. Mill's theory of general utility. 1 Immediately after the passage above quoted Sir James Stephen says : — "The most pointed and instructive modern illustration of this that can possibly be given is supplied by the great American civil war. Who, looking at the matter dispassionately, can fail to per- ceive the vanity and folly of the attempt to decide the question be- tween the North and the South by lawyers' metaphysics about the true nature of sovereignty or by conveyancing subtleties about the meaning of the Constitution and the principles by which written docu- ments ought to be interpreted ? You might as well try to infer the fortunes of a battle from the shape of the firearms. The true ques- tion is, What was the real gist and essence of the dispute ? What were the two sides really fighting for ? Various answers may be given to these questions which I need neither specify nor discuss, but the answer to them which happens to be preferred will, I think, settle conclusively the question which way the sympathies of the person who accepts that answer should go." From this paragraph I infer that, while the author probably sjonpathized with one or the other of those whom he indicates by the terms " the North " and " the South," he had accepted, without a doubt on that point, that theory 1 Sir James Stephen's book is written avowedly in oppposition to Mill's Essay on Liberty. 496 THE QUESTION OF A REVOLUTION. Application of Stephen's Doctrine. of the war which had always been and which still is ad- vanced by those whom he knows as " the South " ; that is, I infer that he regards the war as an intev-state war, a war carried on between two equally legitimate sovereigns. In this, he probably agrees with the vast majority of all Eng- lishmen who have noticed the subject, to whichever side their sympathies may have inclined. 1 Taking this view, he is perfectly consistent in scouting all considerations of the meaning of the Constitution as law, or of its interpretation as a written document. To his mind, it could not be a law or a statute ; it was a treaty- compact only, and law so long as it was a treaty subsisting by the will of both parties ; but no longer. Those who, to his mind, made it had, to his mind, dissolved it. In this essay, I also have endeavored to show that the position of the parties to the war could not be settled by the Constitution, nor by any constitution, regarded as law. I have tried to show that the question — whether the Southern theory of our national existence was the true one, or some other view, inconsistent with the claim of secession and with the existence of such a war as Sir James supposed — is not determinable by "lawyers' metaphysics " about the divisibility of sovereignty and " conveyancing subtleties about the meaning of the Constitution," but is simply a historical question. That foreigners have never understood this is not their fault. The fault was with our fathers and " the founders " 1 Tor illustration I refer to " A Letter to a Whig Member of the South- ern Independence Association " (an English affair), by Goldwin Smith. 1864. Boston edition. Ticknor & Fields. In this, the author founded his argument entirely on the question of sympathy with or against slavery. He used the term "the Americans," throughout, as meaning only the Northern States : — " The Americans, 1 fully grant, were entitled to no sympathy while they remained accomplices with slavery," p. 24. Though, against Earl Rus- sell's expression (ante, p. 491), he asserted that the war was carried on, on the part of the North, to " maintain the existing Union," he, throughout, spoke of it as a "Federal" union, and repeatedly asserted that, but for the emancipation question, he was opposed to the war and favored a peaceable separation. lb. pp. 25, 27. Compare also, ante, pp. 56, 57. THEORY OF OUR NATIONAL EXISTENCE. 497 Dependence of Liberty upon Power. arid with ourselves. Our fathers never knew, or never told, what they meant by "the United States," 1 and we have not, to this day, succeeded in making other people under- stand what we mean by the words. Perhaps we our- selves do not know. But the sentences which, in Stephen's treatise, follow those last cited have a more direct application to our cir- cumstances. Though they are simple common-sense, they, as declaration of principle on which all nations must rest, outweigh all " the glittering generalities " our fathers could pick up from the rubbish of the eighteenth-century philo- sophy. The author's conclusion is, — "It seems, then, that compulsion in its most formidable shape and on the most extensive scale — the compulsion of war — is one of the principles which lie at the root of national existence. It de- termines whether nations are to be what they are to be. It decides what men shall believe, how they shall live, in what mould their religion, law, morals, and the whole tone of their lives shall be cast. It is the ratio ultima not only of kings, but of human society in all its shapes. It determines precisely, for one thing, how much and how little individual liberty is to be left to exist at any specific time and place. " From this great truth flow many consequences, some of which I have already referred to. They may all be summed up in this one, that power precedes liberty — that liberty, from the very nature of things, is dependent upon power ; and that it is only under the protection of a powerful, well-organized, and intelligent government that any liberty can exist at all." A government in this sense — a government which is the cause and not the effect of liberty — is a government not under law, but above law ; a government which is not under a constitution, but above all constitution ; which makes or grants constitutions, so far there are any constitu- tions. 2 1 Ante, p. 297. 2 Constitutions, if they are to exist at all, must exist by the will and act of some pre-existing power-holders. To suppose them to originate in the will or 498 THE QUESTION OF A REVOLUTION. The American Doctrine of Revolution. But conceptions such as these we have been brought up from our earliest childhood to detest and abhor. We have been taught to kick against the idea that, individually, we must be subject to somebody, and that our liberty is the re- sult of our receiving somebody's protection. 1 The contrar}'" conceptions are blazoned forth on every side, by " people who have the gift of using pathetic language," 2 from ever} r platform, pulpit, and newspaper in the land, and by none more than by those same writers and speakers who are now glorifying themselves on account of that exhibition of force which, they say, maintained the Union and fulfilled the promises of 1776, etc. In connection with the general question of political al- legiance, the American 3 doctrine of a right of revolution cannot pass altogether unnoticed. The practical import- ance of considering it may appear from a debate which arose in the House of Representatives, during the first session of the Thirty-Eighth Congress, on a motion for the expulsion of Mr. Long, one of the members from the State of Ohio, on account of remarks made on the 8th April, 1864, in favor of discontinuing the war. 4 Mr. Garfield, at authority of the governed is to suppose a contradiction. But the oldest and, in a sense, the most conservative newspaper in Boston, April 13, 1881, scouted the idea that a constitution for the Russian Empire could originate in the act of the autocratic head, without the co-operation of " the numerical majority." 1 See the theories of the several justices in Chisholm v. Georgia, and particularly the opinion by Wilson, J., full of such propositions as, " The only reason, I believe, why a freeman is bound by human laws is that he binds himself." 2 Dallas, p. 456. Also citation from Jay's Opinion, ante, p. 329. 2 Stephen's " Liberty," etc., p. 175. 3 One may be justified in this designation from the fact that there is probably no other country in the world where resistance to its own authority would be spoken of by any branch of an existing government as a right, least of all by the judipiary. Compare ante, p. 189, n. But, whatever the doc- trine may be, it does not as yet correspond to that which is known to the aspirations of certain political theorists, in France especially, as " the Revo- lution," meaning something permanently continuing, whicli shall, in the future, realize the sovereignty of the people by abolishing all existing forms of government, even such as are now known as republican. 4 38th Cong. 1st Sess. Cong. Globe, 1499. THEORY OF OUR NATIONAL EXISTENCE. 499 Mr. Garfield on the Right of Revolution. that time a member from the same State, took the leading part against Mr. Long, and in the course of the debate said : 1 — " But the gentleman takes higher ground, and in that I agree with him, namely, that five millions or eight millions of people pos- sess the right of revolution. Grant it ; we agree there. If fifty men can make a revolution successful, they have the right of revo- lution. If one State wishes to break its connection with the Fed- eral Government and does it by force maintaining itself, it is an independent State. If the eleven Southern States are determined to secede, to revolutionize, and can maintain that revolution by force, they have the revolutionary right to do so. Grant it, I stand on that platform with the gentleman. " And now the question comes, Is it our constitutional duty to let them do it ? " After some remarks, picturing the consequences to be anticipated from recognizing the separation of the Northern and Southern States, and drawing a parallel between co- ercion exercised to maintain them in union, and coercion as an ordinary incident of all municipal laws, criminal or civil, 2 Mr. Garfield said : — " I said a little while ago that I accepted the proposition of the gentleman, that the rebels had the right of revolution ; and the de- cisive issue between us and the rebellion is whether they shall revo- lutionize and destroy or we shall subdue and preserve. " We take the latter ground. We take the common weapons of war to meet them ; and if these be not sufficient, I would take any element which will overwhelm and destroy ; I would sacrifice the dearest and best beloved ; I would take all the old sanctions of law and the Constitution and fling them to the winds, if necessary, rather than let the nation be torn in pieces and its people destroyed with endless ruin." Here, Mr. Garfield, while recognizing a right of revolu- tion, in some sense of the word " right," avoided the natural 1 38th Cong. 1st Sess. Cong. Globe, 1503. 2 To be cited post, p. 502. 500 THE QUESTION OF A REVOLUTION. On Revolution as a Eight. conclusion that it should be accepted as such, or that he, at least, would acquiesce in the desired political change. For he claimed an antagonistic right to resist it, — not a legal right to resist it, but a counter-revolutionary right. 1 In this he appeared to abandon all question of duty to a recognized political superior and to make the question of political expediency between himself and anybody else depend simply on the issue of brute force. However absurd, logically speaking, the position may seem that one may have a right which it is the duty of some one else to resist, Mr. Garfield's position in this debate illustrates the truth that it is the fact of success only that makes revolution a right in any sense worth noticing. He proposed to treat any resistance to the Government, whether it came from few or from many, as rebellion, as long as it was unsuccessful, and to recognize it as rightful if that resistance could not be put down. But there are very few, probably, among those who speak of '" the right of revolution " who would be equally candid. It is more common to conceive of revolution as a right attributable only to the entire population of some more or less considerable territory, and as one which, if claimed by such an entire population, or by some indefin- itely large majority in such population, ought, in view of American public law at least, to be recognized at once, without resistance on the part of any previous possessor of political power over the same territory. 2 1 Compare Jameson's Const. Conv. § 111, on " counter-revolutionary acts." 2 At the outbreak of the secession movement, this notion of a right of revolution had more or less effect in disturbing the judgments of people at the North without reference to their sympathy with or opposition to the State rights theory. In the debate on Mr. Long's expulsion, Mr. S. S. Cox, a representative from Ohio, defending Mr. Long, April 8, 1864, caused to be read, from the clerk's desk, various extracts from the New York Tribune in the years 1860 and 1861, with others from speeches by Mr. Wade, of Ohio, in the 34th Congress, and by Mr. Lincoln, in 1848, all asserting revolution as THEORY OF OUR NATIONAL EXISTENCE. 501 Theory of the American Revolution. To this conception of revolution as a right may be at- tributed the origin of that hypothesis which ascribes the possession of sovereignty, at the moment of the Revolu- tion of 1776, to the entire mass of the population as dis- tinguished from the States or from the political peoples of the States, either united or several. The argument seems to be that any transfer of sov- ereignty which we may rightly call a revolution must not be regarded simply as historical fact, but as a transaction resting on some law or principle of political morality ; that such a transfer by revolution is so sanctioned only as the right or faculty of the entire mass of the population without refer- ence to any pre-existing political organization ; and that as the transaction occurring in 1776 has been accepted as revo- lution, it must now be recognized by everybody as the act of the entire mass of the papulation, in distinction from the act of the States or pre-existing colonies. 1 But the truth is that this American Revolution of 1776 has its place in history simply as a fact, without any refer- ence to legal or ethical justification. It is one fact in a class of facts which includes many others which are known in history as usurpations. Whether called revolutions or usurpations, they are equally, in their essence, only changes in the location of sovereign power, which as facts are rec- a right on which secession might be recognized. (Globe, 15,08.) Others, equally opposed to the secession of the slave States, had professed readiness to recognize it as revolution if the slave population could be shown to have united in the movement. 1 Thus Story, Comra, § 211, says of the Declaration, " It was an act of original inherent sovereignty by the people themselves, resulting from their right to change the form of government and to institute a new one whenever necessary for their safety and happiness." Adding, " So the Declaration of Independence treats it," which sentence furnishes another illustration of putting the cart before the horse. (Ante, p. 96, n.) The same idea is indeed the basis of all Story's sophistical misrepresentation of history, which, as being such, was fully exposed by Judge Upshur in his review published in 1810 ; though Upshur himself was equally in error by regarding the States as each sovereign independently of their union. 502 THE QUESTION OF A EEVOLTJTICXN". Jlr. Garfield's View of Coercion. ognized without reference to the ethical or legal relations of those who effected them. To speak of "a right of revo- lution " as if it could be right existing in a legal relation, is a contradiction in terms ; and no ethical justification for attempting a revolution can have anything to do with the question whether the attempt shall result in an unsuccess- ful rebellion or in a successful revolution. It was therefore natural enough that Mr. Garfield in this debate should not adhere very closely to this revolu- tionary position, but should in some places easily slip back to the lawyer's point of view. Referring again to Mr. Long's argument, Mr. Garfield said : 1 — " The gentleman has told us that there is no such thing as coer- cion justifiable under the Constitution. I ask him for a moment to reflect that no statute ever was enforced without coercion. It is the basis of every law in the universe, — God's law as well as man's law. A law is no law without coercion behind it." The speaker proceeded to draw a parallel between coer- cion in cases of ordinary execution under civil and crim- inal law, and coercion in the action of the Government against the eleven States, as such. But for his argument on this occasion, as against Mr. Long, Mr. Garfield should have explained whether the co- ercion he was justifying was the coercion of revolutionary force or that of municipal law. I have already cited some passages from Sir James Stephen's work, to the effect that coercion in some form is the foundation not only of law but of liberty. 2 After the sentences last quoted, that author proceeds to say : — " I will not insist further upon this, but I would point out that the manner in which war is conducted is worthy of much greater atten- i 1st Sess. 38th Cong. Globe, 1504 ; ante, p. 499. 2 Ante, p. 497. THEORY OF OUR NATIONAL EXISTENCE. 503 Distinction of Coercion in War and under Law. tion than it has received, as illustrating the character and limits of the struggles of civil life. The points to' be noticed are two. In the first place, in war, defeat after fair fight inflicts no disgrace, and the cheerful acceptance of defeat is in many cases the part of honorable and high-spirited men. Not many years ago an account was published of a great review held by the Emperor of Russia. Schamyl, who had so long defied him in the Caucasus, was said to have come for- ward and declared that as the Emperor had had no more obstinate enemy, so he should now have no more faithful subject than him- self; that he saw that it was God's will that Russia should rule, and that he knew how to submit himself to the will of God. If the story was true and the speech sincere, it was the speech of a wise, good, and brave man." No argument is needed to show that the coercion of municipal law has a very different character for those who are subjected to it, since it involves more or less of dis- grace by involving more or less the idea of punish- ment. Mr. Long and many others in the Northern States, un- doubtedly, as well as the people of the Southern States, regarded the action of the Government simply as the coer- cion of war, — of war between two distinct political per- sonalities, — whether they thought it coercion under the Constitution or outside of it. From their point of view the question always was whether the prospect of military suc- cess, and the probable consequences of such success, if attained, rendered the continuation of the war expedient for the people of the Northern States. It is one of the unfortunate accidents of human exist- ence that, while revolutions must be expected to occur, the coercion which they involve partakes of the character both of the coercion of war and the coercion of municipal law. Logically, it seems absurd that those who resist political change for being rebellion or usurpation should themselves suffer as rebels when the rebellion or usurpation results in a successful revolution. But, as no revolution 504 THE QUESTION OF A REVOLUTION. Distinction in the Nature of Coercion. can take place without the question of success being for some time in doubt, the practical consequence is that the coercion exercised in achieving it has more or less of the character of punishment. 1 ' Mr. Garfield may at times have presented the action of the Government, in reference to the eleven States at least, if not in reference to the people of the whole country, as being revolutionary coercion analogous to the coercion of war ; but the great bulk of those who sustained the Gov- ernment during the war may be assumed to have, thus far, regarded that action as the enforcement of pre-existing political authority against a rebellion. But the difficulty which all such persons experienced throughout the discussions caused by the war was to pre- sent this as founded on a consistent political basis. As between himself and his opponents on this particu- lar occasion, Mr. Garfield's argument, in drawing a par- allel with coercion under municipal law, was simply begging the question, though neither side appeared to be aware of it. The first thing which should have been set- tled between them was what sort of coercion was the coercion to which they severally referred. That the participants in this debate should have failed to notice this in their mutual recriminations is mainly at- 1 A resolution of the Virginia Legislature of Dec. 17, 1782, which Mr. Garfield recited in his remarks on confiscation, Jan. 28, 1864, 1st Sess. 38th Cong. Globe, 403, shows that our revolutionary predecessors were quite as much embarrassed in reconciling law and revolution. As given in the Jour- nal of the House of Delegates, the resolution reads : — "That the laws of this State, confiscating property held under the laws of the former govern- ment (which have been dissolved and made void), by those who have never been admitted into the present social compact, being founded on legal prin- ciples, were strongly dictated by that principle of common justice, which demands that, if virtuous citizens, in defence of their natural and consti- tutional rights, risk their life, liberty, and property on their success, the vicious citizens who side with tyranny and oppression or who cloak them- selves under the mask of neutrality, should at least hazard their property, and not enjoy the benefits procured by the labors and dangers of those whose destructions they wished." THEORY OF OUR NATIONAL EXISTENCE. 505 Importance of the Distinction. 'tribu table to their introduction of this entirely irrelevant and logically absurd theory of a right of revolution. Any new possession of sovereignty being once established as fact, it is equally necessary, as in the case of a conquest in war, for everybody to make the best of it. Viewed as matter of strict justice, there can be no more disgrace under the coercion of revolution than under the coercion of war, though the former will have more or less of the character of punitory law, according to the nature of the revolution and the temper of the times. If the result of the civil war has been the establishment of a national government upon a new location of sover- eign power, it is the part of wisdom as well as of necessity to accept the fact as such, whatever views one may have had of one's political duty before the war. Even those who would resist it as usurpation may accept its success as indicating that it has been the will of God or decree of Providence, as they might accept the result of an inter- national conquest. Those who, whether by revolution or usurpation, may have acquired power unknown under the former constitution will have the political right to punish any who may resist it. Those who, while viewing it as their own act in revolution or usurpation, justify them- selves to themselves by attributing the result to divine in- terposition — if any such there have been — must take the chance, under the verdict of history, of a record either as knaves or as fanatics. But if the idea of a change in the location of supreme power by a revolution is rejected, and if it is assumed that the position of each person living within the United States, in respect to political allegiance, is the same now as it was before, it is of the essence of the whole question to know whether the coercion which Mr. Garfield was de- fending was the coercion of war or that of municipal law. If it was the former, the right of secession, or, rather, the 506 THE QUESTION OF A REVOLUTION. Revolution as Change of Municipal Law. State's capacity to wage war for that end, or any end, is established by the war itself. 1 If it was the coercion of municipal law, the duty of the citizen is no clearer now than it was before ; because nobody has yet explained how the acts of the Government can be reconciled with that supposition. Very probably Mr. Garfield and others would say that the revolution they speak of consists in the changes in the municipal law itself under the will of the pre-existing sov- ereign, — changes of law in respect to social and economical relations, without any change in the location of supreme legislative power. This may also be the prevailing idea in those utterances from judicial, legislative, and executive sources which have hereinbefore been cited, so far as they recognize some change in constitutional law as a result of the war, without also recognizing a revolution in the or- dinary sense. But it is absurd, or another of those contradictions which have been so plentiful from the beginning of the Rebellion, 2 to refer to the coercion of war changes in mu- nicipal law ; for these can be called revolutions, social and economical revolutions, only by a figure of speech. It is a contradiction to call citizens who are opposed to such changes rebels and traitors, and still more to liken them to public enemies vanquished in war. There may perhaps be a certain inability with some per- sons to recognize a revolution in any other sense than this, that is, that of a change of municipal law. For according to the common theory of popular sovereignty, the sovereignty of the nation as a mass, it might be argued that such sov- ereignty exists of necessity, and that, therefore, there never can be a revolution in the sense of a change in the loca- tion of sovereignty. 1 Compare the close of ch. vi., ante, pp. 285, 286. 2 Compare ante, p. 90, in the close of ch. ii. THEORY OF OUR NATIONAL EXISTENCE. 507 Mr. Garfield's View of Sovereignty. As incidental to this conception of revolutions in general, and as showing the fundamental idea in the philosophy of a certain school, 1 a passage may be recited from Mr. Gar- field's speech of July 27, 1879. In continuation of the remarks cited already on page 499, Mr. Garfield said : — " Mr. Chairman, the dogma of State sovereignty, which has reawakened to such vigorous life in this chamber, has borne such bitter fruits and entailed such suffering upon our people that it deserves more particular notice. " It should be noticed that the word ' sovereignty ' cannot be fitly applied to any government in this country. It is not found in our Constitution. It is a feudal word, born of the despotism of the Middle Ages and was unknown even in ' Imperial Rome.' 2 A sover- eign is a person, a prince, who has subjects that owe him allegi- ance. There is no one paramount sovereign in the United States. There is no person here who holds any title or authority whatever, except the official authority given him by law. 8 Our only sovereign 1 By school, I do not mean a political party. The people of this country, of all political factions, have always hugged to their bosoms these delusions as to the conditions of their political existence. It was for this reason that the opponents of Mr. Garfield in the House were unable to reply effectively to his arguments founded on fallacies which they equally accepted. Among similar denials of the necessity of recognizing a supreme or sovereign author- ity in some living person or persons, one is found in an Address, July 4, 1831, by J. Q. Adams, to which Story refers with approval, Comm. § 208. 2 A similar statement had appeared in Mr. Motley's letter to the London Times, 1861 (Rebellion Record, Vol. I. Documents, p. 211), which is one of the most extravagant assertions of the theory of sovereignty held by the people as a mass. The same had been said by Mr. Webster in his speech of Feb. 16, 1833, in reply to Mr. Calhoun. (Webster's Works, iii. 469.) It would be singular if Mr. Garfield or Mr. Webster or Mr. Motley really meant that the relation of sovereign and subject, as between two human beings, was never known before the Middle Ages. The proper distinction is merely that ter- ritorial sovereignty — dominion in relation to a certain limited portion of territory — became the foundation of feudalism, in distinction from that impe- rium over natural persons, without reference to territory or residence, which had been the ancient basis of public law, and which was continued by the theory of the middle-age German Empire. This is fully considered in Maine's Ancient Law, pp. 99-104. See also Bryce's Holy Roman Empire, 123. 3 As the speaker on another occasion (ante, p. 502) had maintained that coercion must exist if law is to exist, he must be of that school which im- 508 THE QUESTION OF A REVOLUTION. The States distinguished from Corporations. is the whole people. To talk about the ' inherent sovereignty ' of a corporation is to talk nonsense ; and we ought to reform our habit of speech on that subject." The fundamental fallacy is here exhibited in compar- ing political personalities to corporations under municipal law, that is, to artificial persons, such as are made and continue to exist by the legislative will of a visible politi- cal superior who is not an artificial person. The historical fact is that the States were not " corporations " in that sense ; not artificial persons made and continuing to exist by the legislative will of a political superior, visible or in- visible. They came into being, as States, by the transmis- sion of the imperium or sovereignty from the crown and Parliament of Great Britain to them-in union ; they, sever- ally, consisting of so many actual human beings — the electors or voters acting through agencies called govern- ments and thereby determining, each for itself, its several existence as one of the United States, sovereign in their voluntary union. 1 They were political personalities which had originated as corporate bodies under special legislative grants, — charters or patents — or permissive sanction, resting on the prerogative of a recognized political sovereign, determin- ing the natural persons who should constitute such corpor- ations. In the Revolution these corporate bodies as political personalities assumed and maintained by force, the force of war, the possession of sovereignty, which in and by that force was transmitted to them, in union, from its former holders. In the history of this fact the Declaration of Independence is simply a record, — a fragment of the journal of the Con- agines laws as having coercive force in themselves, — the theory of the " sov- ereignty of law." 1 Compare the rejection of this distinction by Professor Jameson, ante, p. 127, n. THEORY OF OUR NATIONAL EXISTENCE. 509 Value of the Declaration of Independence. gress composed of the delegates of the United Colonies at that moment, the whole being part of a much more ex- panded historical record. To attribute to it a legislative force, determining the political value of the facts which it records, is absurd. 1 Its distinctive importance in the whole record is in the fact that it has been accepted by all the world as marking an instant of time, — an instant for the transmission of pre-existing sovereignty from one holder to another. The battles of the Revolution, making possible the estab- lishment of diplomatic relations between an earlier holder of sovereignty in and for the colonies and a new holder of the same sovereignty in and for the States united, were the essential facts which gave all the distinctive importance to this record. What gave meaning to the Declaration was not any motive, principle or theory, expressed or not, but a purpose, — the purpose to take independent political power by force, by right above law, because by force above law. What gave it importance was the fact that this pur- pose was sustained by force which proved adequate to the occasion. The question for all the world at that moment was, Who is the political personality (or, who are the political personalities) capable of holding sovereignty as a unit, that is, independent political power sustained by force, — who has (or who have) thus expressed this purpose and actu- ally maintained it? This Declaration and every other part of the historical 1 To the disciples of this school, the Declaration becomes another fetish ; more powerful, as such, than the Constitution itself. In connection with some sentences already cited from Cooley's Constitutional Limitations (ante, p. 125, n.), the author says, "The Declaration of Independence made them sovereign and independent States by altogether abolishing the foreign juris- diction and substituting a national government of their own creation." See also R. Frothingham's Rise of the Republic, ch. xi., where the document is spoken of as if it worked of itself. Taine has said somewhere, " Under the shell there was an animal, and behind the document there was a man." 510 THE QUESTION OF A REVOLUTION. Revolution — the Act of the Colonies. record indicate that the colonies, as thirteen distinct political personalities in union, said, at this time, that they could, in union, become free and independent, and that they meant to be free and independent States in union ; and, as soon as the former possessor of sovereignty in and for these colonies, after sufficient trial or test, recognized that this was a fact and not merely a purpose, there was an end of the matter, as far as that former possessor of sovereignty in and for those colonies was concerned. And this being the fact of the matter, as far as we too are concerned, it is no matter to us what " the people " or " the nation," in the sense of all the inhabitants of all the colonies taken as a mass, thought on the subject. We know perfectly well that, taken as such mass, they did not do anything about it. 1 It is a fact, about which nobody has ever disputed in the least, that nobody, individually as a human being, had at that time, or ever since has had, the op- tion to say whether he or she would or would not recognize this as the fact of the matter. Nobody individually has had the option to like it or not to like it. Or, the only option has been to like it, and stay, or not to like it, and quit. To recall this to our minds, the allusions to " the Loyalists " and " the Tories," in Mr. Garfield's speech of Aug. 4, 1876, are sufficient. 2 It is a fact, about which nobody disputes, that society and government were never, for an instant, broken up or discontinued. It is as certain as anything in history can be that nobody, for an instant, was released from political and civil subjection to political and civil supremacy, or was for a moment in a situation to act like an independent sovereign, or do as he or she pleased without regard to any political authority. The laws which had rested on 1 Ante, p. 112. 2 How Mr. Garfield would apply in such cases the doctrine of a right of private judgment in matters political, or, indeed, on what authority he at- tributed that doctrine to Luther (ante, p. 467), he has not shown. THEORY OF OUR NATIONAL EXISTENCE. 511 Colonies passing into States united. the authority of the colonies, maintained by their polit- ical relation to the crown and parliament of Great Britain, continued to rest on the authority of the States, main- tained by their mutual political relation (as corporations, if anybody chooses to call them such) in their voluntary union, together possessing sovereignty as a unit. It is as certain as anything can be certain from history that the people or nation, as a mass, did not do anything to make this state of things or to unmake it. 1 Each State, being in union with the others, determined its own corporate existence, determined the natural persons who, having been the constituent members of the colony, should continue as the electors or voters of the State in its use or exer- cise of the power of sovereignty in union with the other States. It is certain that nobody participated in political life as a voter for representative government except as his capa- city was derived from the will of the pre-existing and con- tinuing corporate body called " colony " and afterwards " State." There was, therefore, nobody in existence who actually 1 As these pages are written Mr. Jefferson Davis's " Rise and Fall of the Confederate Government" appears (June, 1881), which I here notice as con- taining an exposition of the historical weakness of the theory of sovereignty in the people as a mass, as it had been presented by Story, Webster, Ever- ett, Motley, and others. (See Part II., The Constitution, Chapters IV.-IX.) But yet Mr. Davis, like all of the school he opposes, repeatedly asserts the in- herent sovereignty of the individual, that governments rest on the consent of the governed, using government in the same ambiguous way ( Vol. I. p. 299, 452), and the possession of sovereignty by aggregate masses of people (Vol. I. pp. 142, 154, 155), as political axioms. One of his most deliberate propo- sitions, however, is (Vol. I. p. 157): "That political sovereignty resides neither in individual citizens nor in unorganized masses, nor in fractional subdivisions of a community, but in the people of an organized political body." Another work which appears simultaneously, and which contains a still more elaborate refutation of the historical basis for the so-called " Na- tional" theory, and which is characterized by the same mistaken notions about sovereignty, etc., is " The Republic of Republics ; or, American Federal Liberty," by P. C. Centz [pseudonym], Barrister. Fourth edition. 512 THE QUESTION OF A REVOLUTION. Oaths to support the Constitution. held and exercised political power by right above law but these corporate bodies, and, therefore, nobody who did or could give or make State and national constitutions, but these States. 1 Outside observers might think that the fact of the seces- sion war had proved sufficiently that our written Constitu- tion cannot of itself determine for the individual citizen who those shall be who will protect his life and property, and who can also compel his obedience for protecting the lives and property of others. It will be said, however, by those who would make deities out of constitutions, that the possibility of perjury and falsehood must be necessarily recognized ; that if everybody would " continue to execute all the express provisions of our national constitution, the Union would endure forever, it being impossible to destroy it, except by some action not provided for in the instrument itself." 2 But there is something else, lying behind the Constitu- tion, which has to be settled before any conclusion as to perjury in breaking one's oath to support it, or as to crime in not obeying it as law can be reached. To show this I do not propose to appeal to the argu- ments of any secessionists or of any Southern statesmen. On more than one 'occasion during his distinguished career in Congress the present occupant of the presidential chair has given a view of this matter which, if accepted in his justification, must be equally serviceable for every other American citizen. In the course of debate on the confiscation legislation, 1 Compare on these facts, ante, ch. iv. Those who attribute to " ideas " the force of law derived from a political sovereign (compare ante, p. 456), would probably claim the German author, Herder, as a leader, but even he said : " The historian will never attempt to explain a thing which is by a thing which is not. And with this severe principle all ideals, all phantasmas of a dream-world disappear." K. Hillebrand's Lectures on German Thought, p. 132. 2 See Mr. Lincoln's language in his Inaugural, ante, p. 144, n. THEORY OF OUR NATIONAL EXISTENCE. 513 Mr. Garfield's and Mr. Lincoln's Position. arising at the first session of the Thirty-eighth Congress, 1 Mr. S. S. Cox, also a representative from Ohio, had asked whether " he [Mr. Garfield] would, to aggravate the pun- ishment of the traitor or to punish the innocent children of the rebels, break the Constitution ? " Mr. Garfield replied, — " I would not break the Constitution for any such purpose. . . . I would not break the Constitution at all, unless it should become necessary to overleap its barriers to save the Government and the Union." In the course of a debate which arose a few months later, and which will be • noticed again hereafter, 2 these remarks were recalled to Mr. Garfield's notice, and on that occasion he repeated the statement of his position. But, as being similar as an illustration of the point taken, I next refer to a well known paper written in the interval ; one which has for many persons, probably, an authority greater than they would accord to anything written by anybody now living. In the letter to Colonel Hodges, already mentioned, dated Washington, April 4, 1864, Mr. Lincoln wrote : — 1 Jan. 14, 1864, 1st Sess. 38th Cong. Globe, 213 ; in a debate on a joint resolution explanatory of an " Act to suppress insurrection, punish treason and rebellion, to seize and confiscate the property of rebels, and for other purposes." See ante, pp. 59, 170. Speaking on the same matter, Jan. 28, 1864 (Globe, 403), Mr. Garfield said that he could not agree either with the theory which "acknowledges that these States are out of the Union [which he attributed to Mr; Thaddeus Stevens], nor, on the other hand, agree with those who believe that the insurgent States are not only in the Union, but have lost none of their rights under the Constitution and laws of the Union." Mr. Garfield, with the majority of his fellow-statesmen, must however have sustained this legislation on a combination of two incompat- ible positions, one resting on the theory of an international war, and the other on the theory of municipal law against rebellion. Comp. ante, pp. 170-179. On the same occasion, when discovering a precedent for this legis- lation in the several action of the States at the close of the Revolution, con- fiscating the property of the adherents to the crown, Mr. Garfield attributed it to the exercise of a war power. For this position he cited the authority of Jefferson, when Secretary of State in 1792. Globe, 404. 2 See post, p. 515. 514 THE QUESTION OF A REVOLUTION. ■ ; — • ■ Mr. Lincoln's Letter to Colonel Hodges. " You ask me to put in writing the substance of what I verbally said the other day in your presence to Governor Bramlette and Senator Dixon. It was about as follows : ' I am naturally anti- slavery. If slavery is not wrong, nothing is wrong. I cannot re- member when I did not so think and feel, and yet I have never understood that the Presidency conferred upon me an unrestricted right to- act officially upon this judgment and feeling. It was in the oath I took that I would to the best of my ability preserve, protect, and defend the Constitution of the United States. I could not take the office without taking the oath. Nor was it in my view that I might take the oath to get power, and break the oath in using the power. I understand, too, that in ordinary and civil ad- ministration this oath even forbids me to practically indulge my primary abstract judgment on the moral question of slavery. I had publicly declared this at many times and in many ways. And I aver that, to this day, I have done no official act in mere deference to my abstract judgment and feeling on slavery. I did understand, however, that my oath to preserve the Constitution to the best of my ability imposed upon me the duty of preserving, by every in- dispensable means, that Government — that nation — of which the Constitution was the organic law. Was it possible to lose the nation, and yet preserve the Constitution ? By general law, life and limb must be protected ; yet often a limb must be amputated to save a life ; but a life is never wisely given to save a limb. I felt that measures, otherwise unconstitutional, might become lawful by becoming indispensable to the preservation of the Constitution through the preservation of the nation. Right or wrong, I assumed this ground ; and now avow it. I could not feel that to the best of my ability I had even tried to preserve the Constitution, if to save slavery, or any minor matter, I should permit the wreck of govern- ment, country, and Constitution all together. ... I add a word which was not in the verbal conversation." 1 1 The remainder of this letter has already been quoted, ante, p. 470. If Mr. Lincoln was right in calling the secession ordinances nullities, and void, as acts, because there was nothing in the Constitution to authorize them (ante, p. 144, n.), this letter is an argument for the nullity of his own edict. Such claims as this of Mr. Lincoln are one of the marks of civil war in repub- lican states. While the issue was still pending between the second trium- virate and the party of Brutus and Cassius, Cicero wrote to Brutus, " By what right, by what law, shall Cassius go to Syria [as proconsul] ? By that THEORY OF OUR NATIONAL EXISTENCE. 515 Mr. Garfield on breaking the Constitution. In the course of the debate already noticed, on the motion for the expulsion of Mr. Long, that gentleman had alluded to the remarks of Mr. Garfield on the 14th of January, as above cited. Mr. Garfield said in reply : — " I said what I did say upon that occasion with great circum- spection and care, and all I ask is that the gentleman will fairly quote me, as I presume he intended to do. In reply to the gentleman from the central district of Ohio [Mr. S. S. Cox], who is not now in his seat, when he asked me if I would break the Constitution, I answered that I would not break the Constitution at all, unless it should become necessary to overleap its barriers to save the Union. I did not say then, as I do say now, that on such an occasion I would overleap the barriers of the Constitution, but I would leap into the arms of a willing people who made the Constitution." On the same occasion, immediately after the remarks already cited, as to a right of revolution and his determined purpose to resist it by force (ante, p. 499), Mr. Garfield said : — " What is the Constitution that these gentlemen are perpet- ually flinging in our faces whenever we desire to strike hard blows against the Rebellion ? It is the product of the American people. They made it, and the creator is mightier than the creature. The power which made the Constitution can also make other instru- ments to do its great work in the day of its dire necessity." The question being asked by another member whether he had not, in the same remarks, alluded to his having, together with the other representatives from the State of Ohio, taken at the Speaker's desk the oath to support the Constitution, Mr. Garfield answered : — " I did ; and I am very happy the gentleman has reminded me of it at this time ; and I remember in the very preamble of that Constitution it is declared to be ordained and established for the purpose of promoting the general welfare and providing for the com- mon defence ; and on that very ground, based on that very state- law which Jupiter sanctioned when he ordained that all things good for tlio Republic should be just and legal." Trollope's Life of Cicero, II. 218. 516 THE QUESTION OF A REVOLUTION. Nature of Fetish Worship. ment of its declared object, I not only lifted up my hand to swear to support the Constitution before God, but it makes me now sorry there had not been a sword in it when I lifted it up, to strike down any and all who would oppose the use of all the means God has placed in our power for overthrowing the Rebellion forever." 1 In reply to a question from Mr. S. S. Cox, also a repre- sentative from Ohio, Mr. Garfield said during the same debate : 2 — " What I have uttered is this : When asked if I would under any circumstances override the Constitution, I said this and this only, — premising, as I believed, that the Constitution was amjale enough of itself to put down this Rebellion, that its powers were most capacious, and that there was no need to override it, — that if such a time ever should come that the powers of the Consti- tution were not sufficient to sustain the Union, if that impossible supposition should ever prove true [laughter from the Democratic side of the House~\, then I would say that we have a right to do our solemn duty under God to go beyond the Constitution to save the authors of the Constitution." 3 Some will say, probabky, that such declarations show at least that there must be some very material limitation to that veneration for the Constitution which outside obser- vers have supposed to be so universal in our minds. 4 More critically considered, however, such language may rather be taken as betraying one of those phases which all fetish worship exhibits. While all goes well with the devotee he exalts his idol with song and sacrifice, and boasts its omnipotence as he invokes its terrors against rivals and enemies crouching about some other jungle-shrine. But if fortune is adverse, and his lusts fail of gratification, the idolater begins sulking before the senseless block, refuses 1 Could Mr. Garfield possibly mean that he would have felt justified in taking, on his individual judgment and responsibility, the life of any or all who would oppose him in any assumption of power he might think proper for this purpose 2 2 1st Sess. 38th Cong. Globe, 1505. 3 On the same question compare ante, pp. 346, 347, and the notes. i Ante, p. 93. THEOEY OF OUR NATIONAL EXISTENCE. 517 Nature of written Constitutions. incense and homage, rails at its obstinacy, and, as tilings grow worse, strips it of its ornaments, and even gives Mumbo-jumbo a douse in the horse-pond. The fetish, how- ever, is none the worse for this usage. When the clay of ad- versity is passed, the deity becomes respectable again to the enslaved imagination of the votary ; and when he has seen his desire satisfied on his enemies, he brushes up his soiled faith, renews his broken vows, and sets his god up again, with fresh paint and brighter feathers, — a somewhat changed but no less powerful divinity, to answer the needs of the superstition that gave it being. All citizens must be alike in respect to the obligation to obey the Constitution, whether they may have taken an oath to that effect on assuming the responsibilities of an office, or not. The question might be asked, how any mem- ber of the general Government, or any other citizen, is to know that those from whose will the Constitution derives its authority did not intend that their will should be main- tained only in the way therein indicated. This, indeed, has always been assumed as the great end, purpose, and ad- vantage of written constitutions, — that they limit even the ultimate sovereign. Whether this is not the fundamental fallacy and weakness of all constitutional governments is a question which need not be here examined. That Mr. Garfield on this occasion saw this obvious objection to his position appears from his evading it by assuming that, in indicating the general welfare and the common defence as the ultimate objects of its provisions, those from whose political existence the Constitution derived its authority had entrusted to him the care of that existence, indepen- dently of any written Constitution whatever. Considering that for several generations the people of this country having been trying to persuade themselves that the written Constitution of the United States must be all-powerful for the conservation of everything else, it 518 THE QUESTION OF A REVOLUTION. Position of the Citizen to the Constitution. would not be strange if some who read these candid state- ments find it difficult to understand why this Constitution cannot be trusted to take care of itself as well. 2 But Mr. Lincoln and Mr. Garfield were correct in this at least, if they meant to say that there is no constitution to be faithful to, at any time, unless there is somebody in existence at the same time to whom its authority can be ascribed ; and their argument, if it may be called such, may be construed as being that they regarded their oaths to support the Constitution, as law, equivalent to oaths of allegiance to some sovereign existing independently of the Constitution. This being recognized as the true view, it remained to determine who the person or persons were to whom al- legiance was due ; which is no other question than the question, Who are the person or persons from whose will the written Constitution is law for anybody ? The question turns upon the existence of a fact neces- sarily preceding the Constitution in the order of cause and effect. Here, therefore, no courts, no learned jurists, no arguments from the lawyer's point of view, can decide the duty of the individual citizen. It is a question of fact, to be determined for himself by the intellect, conscience, and bodily senses of each natural person on the testimony given in history, continuing to the moment of the question. And responsibility for the answer will rest on each such person individually. 2 1 The difficulty in the case is that it can do so only " as far as its nature will permit," to use Marshall's words, ante, p. 430. 2 Paper No. 83 of the Loyal Publication Society [1865] was one by Dr. Lieber, proposing certain amendments to the Constitution, the first of which was to read : " Every native of this country, except the sons of aliens whom the law may exempt, and Indians not taxed, and every naturalized citizen, owes plenary allegiance to the government of the United States, and is en- titled to, and shall receive, its full protection at home and abroad." Lieber's Miscell. II. p. 177. If adopted in the ordinary manner of an amendment, this provision could not have had the proposed effect. For, if law, like tho THEORY OF OUR NATIONAL EXISTENCE. 519 Position of an Officer of the Government. Mr. Lincoln and Mr. Garfield, the one being the Presi- dent, and the other a member of the legislature, each meas- ured his capacity as an officer of a government established under a written Constitution by his own unsupported de- cision of this question, as presented to each citizen of the United States. In the position which they took at this crisis, the Constitution could be no guide to their duty as members of the Government. It could merely be to them, as to any other citizen, part of the evidence leading their minds to a knowledge of those who were the creators of the Constitution. It is plain, therefore, that a member of the Government who takes such a position must take it in view of his indi- vidual duty, as a citizen, towards some political superior. But it is equally clear that everybody else is in the same situ- ation in regard to this question, — whether to observe the Constitution or not to observe it, — and must likewise rest his political obligation on his own unsupported knowledge of the fact which is the cause of the Constitution as effect. 1 It must, in the last resort, be a question of conscience for each person obliged to recognize a sovereign, somewhere, before he can recognize a constitution as law. It will be seen, then, that, logically, President Lincoln and Mr. Garfield were in no better position on this point than any States-right theorist or practical secessionist. This was precisely the position taken by the citizens of the eleven States of the Confederacy. They also recog- rest of the Constitution, the provision itself must be referred to the continuing will of somebody, and, whoever that was, to him or them the allegiance would be due. This proposition was an illustration of Dr. Lieber's theories about the source of law or of the relation of law to " sovereignty," a term which in conversation he often said " we must get rid of." 1 The difference in the positions of the member of a government and the private citizen is in the opportunity which the former may have "to force the hand " of those who have entrusted him with constitutional power. It was from this opportunity that Mr. Lincoln's Emancipation Proclamation had its so-called validity. 520 THE QUESTION OF A REVOLUTION. By Whom the Fact is settled. nized the existence of the authors or creators of the Con- stitution as superior to the existence of the Constitution as law. But the testimony given by history, as it was apprehended by their intellects, consciences, and bodily senses, told them that the Constitution derived its author- ity at that time from the will of States severally and indi- vidually sovereign. When the issue is presented in this form, all that those who would support the general Government, on Mr. Lin- coln's and Mr. Garfield's theory of political duty, can say is, that they intend to act as though any who differ from them as to the facts were mistaken as to the facts. If they succeed in that course of action, that settles the question of fact for themselves and for everybody else. For the question is one which is never settled as matter of prevailing opinion only ; that is, not by the mere opinion of even the greatest number. The citizen must be individually responsible for his own decision as to his political duty ; but an opinion on the question of fact, whether held by one or by many, counts for nothing, as far as one's self or others are concerned, except as it is supported by some actual or prospective exertion of force. Those who claim the capacity to determine, for them- selves and for everybody else, the personality by whose will the Constitution became and continues to be law must, in reality, claim to be themselves that personality, or to be themselves the makers of the Constitution. To decide, for others, who is their political superior is to be that po- litical superior. Anybody, who likes to try, may take this position ; but to make it of the slightest importance to anybody else, he or they who take it must be able and ready to maintain that view of the facts by main strength. In point of fact, those who have actually done this, that is, who have taken this position and maintained it by force THEORY OF OUR NATIONAL EXISTENCE. 521 The Weakness of a certain School. from the first day of national independence to the present moment, have been the political peoples of the States which have continued in a voluntary union. And this is the evidence, and the only evidence possible, that they, the States in union, are those from whom the Constitution de- rives its authority. Instead of recognizing some actual person or persons as actually holding sovereign power, Mr. Lincoln and Mr. Garfield in these instances, as all of that school which attributes sovereignty to the nation as a mass have done, placed their own private standard of right and wrong, of public and private advantage or disadvantage, in the place of the will of a sovereign. This was indeed the charac- teristic method of Story, Lieber, and many others who have had a leading part in educating their generation in political life. 1 But in this respect, these American publicists are not distinguished from many others who in other countries have lived contemporaneously. They were, in many re- spects, in harmony with a class of political reformers in Europe, who are contending against what they call " prop- erty in power," whether held by a few or by many, and who are trying to convince the world of the possibility of " the sovereignty of law," 2 of the possibility of societies governed by justice, without recognizing anybody who shall determine what is just: though all of this school 1 In a notice of Dr. Lieber's Miscellanies, in the Nation, March 27, 1881, it was remarked : " Dr. Lieber never seems to have fully comprehended the distinction, now so fully recognized by all English publicists, between the domain of law, embracing the legal conception of rights, duties, and the attendant sanctions, and that of ethics. This fault, so noticeable now, wholly escaped the observation of his own generation, because it was shared by almost all the leading writers of the day. Kent, Story, and all their con- temporaries had very antique and confused conceptions as to the relation between law and morals." Compare, on the other hand, authors such as Austin, Maine, Bagehot, and Stephen. 2 Ante, p. 96. 522 THE QUESTION OF A REVOLUTION. A Question of Political Expediency. propose that everything they may personally consider right shall be taken for justice. It seems to be assumed, at the present time, by many, that all political and social evils would necessarily be less if the power to remedy them were entrusted to a general, central, or national government, — employing the States, if allowed to subsist, as agencies perhaps — than if the requi- site power should be continued, as far as it has been " re- served," in the hands of the States. The doctrine may be true enough, as political philosophy ; 2 but, even if it is, the question whether the power is so located is not deter- mined bj' such a principle, and nobody has a right to act as if it were so determined. It is certain that no such principle was accepted by our predecessors of a century ago. Whatever the actual seat of sovereignty, as a unit, may have been, it is certain that all the public law pro- ceeding from that sovereignty has been founded on the expediency of distributed powers. 2 There is no necessity, however, that we who live to-day should agree with our predecessors on this or any other point of political expediency. 3 Whatever the location of sovereignty as a unit may have been before the war, it is conceivable that, now at least, it should be no longer held by the political peoples of the States united. And if this is the case, there is nobody else to hold it but the person or persons known for the time being as constituting a National Government : because the possession of sover- 1 It is open to foreign observers, who believe in this as a principle, to criticize our form of government for not recognizing it, as does Mr. Bage- hot (English Constitution, 282). But it is very singular that a writer like Bagehot, as soon as he looks at our political structure, argues about it as if the possession of ultimate power could, with us, be determined by law, or was not a question of fact upon which all law must depend. See ib. pp. 281-289. 2 For this position, Lieber and De Tocqueville, among many, may be cited as leading authorities. 3 Ante, p. 319. THEORY OF OUR NATIONAL EXISTENCE. 523 Mr. Lincoln's Address at Gettysburg. eignty by the people as a mass is nothing but an hypothe- sis, and has no political consequences whatever, except as some person or persons may succeed in using sovereign power in the name of such people. 1 If we are now to conceive this doctrine or theory of our national existence as established by the military success of the Government in the war which closed in 1865, it is immaterial to the question of present obligation whether it is or is not to be recognized in history as a revolutionary change. On the dedication of the cemetery at Gettysburg, Mr. Lincoln's simple and pathetic eloquence declared, — " The world will little note, nor long remember, what we say here, but it can never forget what they did here. It is for us, the living, rather to be dedicated here to the unfinished work that they have thus far so nobly carried on. It is rather for us to be here dedicated to the great task remaining before us — that from these honored dead we take increased devotion to the cause for which they here gave the last full measure of devotion — that we here highly resolve that the dead shall not have died in vain ; that the nation shall, under God, have a new birth of freedom, and that the government of the people, by the people, and for the people, shall not perish from the earth." From the antecedents, as well as from the language, of the speaker on this occasion, it is known that he regarded the object of that sacrifice of life as a noble, just, and righteous one, and it must be assumed that, whether it came by the path of revolution, or by that of fidelity to a pre-existing sovereign, he was ready to accept some " gov- ernment," or possession of sovereignty, as a fact estab- lished at the cost of those labors and lives which had thus consecrated the scene of their last effort. The question then remains awaiting an answer, What is this " government of the people, by the people, and 1 Ante, p. 333. 524 THE QUESTION OF A KEVOLUTION". Unsettled Questions. for the people " ? And this is still the same question it was before, — the question of the definition of the words, " the people of the United States." It was said in the last presidential Inaugural that " un- settled questions have no pity for the repose of nations," 1 and no truer words, or words more worthy of their con- sideration, could be addressed to the American people. It is evident that there will always be unsettled questions in the daily life of any nation ; and more of such may be expected in new, growing, or developing countries, and in the present era of invention, progress, and free inquiry. As to questions in respect to ordinary domestic and foreign policy and legislation, if they are for a time unsettled, it is at least settled who the person is, or who the persons are, who can settle them. But there is a class of questions as to this very point ; or, rather, there is this question of questions, — Who is it that can settle unsettled questions ? and wherever there is a nation for whom this question is unsettled the prospect of repose is very limited. Mis- erum est servitus ubi jus vagum et incertum est, and the jus is always uncertain where the power to declare what shall be obeyed as law is uncertain. The desire for political power, as incidental to all human nature, 2 must be expected to operate in this country, as elsewhere, whatever may be the theory hereafter accepted, — whether that of a supreme government, assuming to rep- resent the nation as a mass, or, on the other hand, that of some federal union of sovereign States. It must be antici- pated that political parties will exist, in either case, as 1 March 4, 1881. The President used the expression in the following connection : " If in other lands it be high treason to compass the death of the king, it should be counted no less a crime here to strangle our sovereign power, and stifle its voice. It has been said that unsettled questions have no pity for the repose of nations. It should be said, with the utmost em- phasis, that this question of the suffrage will never give repose or safety to the States of the nation until each, -within its own jurisdiction, makes and keeps the ballot free and pure by the strong sanctions of the law." 2 Ante, p. 307. THEORY OF OUR NATIONAL EXISTENCE. 625 Distinction in the Nature of Parties. ■ r they exist at the present day in all civilized countries, and especially in those having a more or less democratic form of government. But the contest between the Ins and the Outs for the control of the administration of a government is one which may, and ordinarily does, go on continuously with very little attention from the great majority of citizens. As long as there are no difficulties in the conception of any as to the personality who is the actual sovereign, the indi- vidual citizen can regard himself as true to all political obligation, whatever party may control the administration. However eager such parties may be in the pursuit of official power, and however important the moral and ma- terial tendencies of their respective policies ma}" be, there is a sense in which it may be said that the repose of the nation or state is undisturbed. For the rivalry of such political parties does not neces- sarily involve questions as to the ultimate seat of supreme power, the forma imperii, — the possession of government in that sense, — the possession of power above law. Politi- cal parties are supposed to contend for the control of government in the lower and more ordinary sense of the forma regiminis, — the administration of government in its several functions, — the possession of power under law. 1 In such party contests there is no question of allegiance to a sovereign. But if a political party aims at effecting a change in the actual seat of power, — of power above law, — it acquires a revolutionary character entirely distinct from that of ordinary political parties, and in the proportion that the possession of ultimate political power is involved in the strife of contending factions it acquires the character of civil war. 2 1 Ante, p. 302. 2 In some countries, though having a republican or constitutional form of government, the party actually holding the administration may claim 526 THE QUESTION OP A REVOLUTION. Relation of the Slavery Question. Whatever may be the moral responsibility of individual citizens attending either of such conditions of political strife, it is plain that they cannot, if they would, occupy the same position of indifference in reference to parties of the latter description which they might in respect to nor- mal party contests for administrative power. For as soon as. the question of allegiance is involved in the success of one or the other party, even non-resistance, as towards one side, becomes criminal, as towards the other. 1 In the case, then, of such unsettled questions there is no repose for the nation or for the citizens ; because there is no cer- tainty either as to the duty to be rendered on the one hand, or the protection to be received on the other. The question of the actual location of sovereignty in the hands of some particular persons, as distinguished from some others, being purely a question of fact, has no necessary connection with problems of political economy, nor with any moral or religious considerations as to the right or wrong of any particular social institutions. But as slavery had always been an institution resting on State laws, and as the doctrine of State-sovereignty and alle- giance to the State had been employed to justify secession in the defence of slave-holding interests, many persons seem to have persuaded themselves that there was an intrinsic connection between the political doctrine and the domestic institution. 2 At least, they have argued as if the question of political obligation, as between the general that it alone represents the actual sovereign. This has been so often illus- trated in the civil dissensions of some Spanish American republics that it has acquired, with us, a distinct name, — the Mexicanization of institutions. In such countries all party contests have the character of civil wars. The same thing would occur in this country, if a party, on the theory of a " war of ideas," should attempt to retain the control of the general Government against the popular vote. Compare ante, p. 472, note. 1 Compare ante, pp. 98, 503. 2 Compare the extract from Mr. Garfield's speech, Aug. 4, 1876, ante, p. 467. THEORY OF OUR NATIONAL EXISTENCE. 527 The Question not one of Ethics. Government and the State, could not have presented itself to the mind of the citizen, except in connection with the question whether the slavery, or, more generally, the social and political inferiority, of descendants of African negroes should be approved by his individual conscience. 1 Having accustomed themselves to regard the powers of the general Government as the proper instrument for sus- taining their personal views on this question, many per- sons seem to assume that a centralized government would necessarily promote any moral or economical objects which they may individually approve, and they now congratu- late themselves and their fellow-citizens upon an approach- ing era of peace and virtuous prosperity under the sway of the prevailing opinion of the hour, which they take for granted will always be identified with their own. 2 But this view eliminates, not only the original principle in favor of a distribution of the powers of sovereignty, but even all idea of political obligation. It assigns to the moral judgment of the individual citizen the place which can only be occupied by a historical fact, — the fact that some person or persons must be recognized as possessing the supreme power, and as claiming the allegiance and obe- dience of the citizen, before right or wrong, in their legal sense, can exist. 1 For the contradiction of this view given by the history of slavery, com- pare ante, p. 376, note. 2 This way of looking at the whole subject as an issue depending on the moral feeling of the individual citizen has not been limited to any one class of persons. Compare ante, p. 492, note, a quotation from one of Mr. Gar- field's speeches. But from the antecedents of those who have most con- spicuously illustrated it, it might be called the clergyman's point of view ; which, on such a question, is even more inadequate than the lawyer's. {Ante, p. 443.) It is evident that the same sort of reasoning might at any time be used as effectually to support State sovereignty, to say nothing of slavery, as it has been by persons at the South, of the like clerical antecedents. This view is closely connected with that confusion of law with ethics which characterized so many jurists of the last generation. Compare ante, p. 521. 528 THE QUESTION OF A REVOLUTION. Necessity of the Question. It was the doubt, uncertainty or, rather, the absolute ignorance of the people of this country on this question of political fact which alone made the civil war possible. Had there been a universal recognition of some sovereign to whom allegiance had been due up to that moment, either secession would have been accepted, as matter of polit- ical faculty on the State sovereignty theorj^, to be followed by international relations, peaceful or warlike, or it could, on some opposite theory, have been attempted only as simple revolution, and been recognized as such. If it had taken this form in the minds of the Southern people, that is, if they had attempted it without a sense of support in the doctrine of State sovereignty, the knowledge of this on the part of the rest of the country, and its recognition of the movement as revolution pure and simple, would have given a different character to the conduct of the war. It would have excluded entirely that idea of international war, — the idea of war between the States as such, — which, at the beginning, palsied the energies of the general Gov- ernment, and invited foreign sympathy with the Southern cause, and which was at the first, and has ever since been, a source of division, bitterness, and partisan bickerings at the North. If there is such a thing as a natural right of a natural person in civil society, it must be the right to know who those are who, as sovereigns, actually hold power, for the use of which they are responsible only to God and their own consciences, and who can determine on the lives, lib- erty, and property of others, — being answerable to none other, unless by the appeal to arms. The question considered in this essay is, then, one about which every human being standing on the soil known in geographies as the United States of America, or even hear- ing the name pronounced in any part of the world, may claim a right to inquire. THEORY OF OUR NATIONAL EXISTENCE. 529 The Object of this Essay. It is also to be remembered that this inquiry is far less important as a right than it is as a necessity. It is, in- deed, a right because it may at any moment become a necessity. Yet, however obvious the right may be, or however important to the citizen may be the consequences of not arriving at the true answer, it is possible that he may sometimes be unable to find an answer, because at a loss as to whom he shall, inquire of. A doctrine of State-sovereignty, from which the capac- ity of a State to secede was logically deducible as a polit- ical right independent of law or written constitution, had been asserted, from the earliest period of our political ex- istence, by a large number of persons eminent for learning, private worth, and public services. They derived that doc- trine from a view of history, preceding the adoption of the Constitution, 1 which had been generally accepted in all parts of the country until a time within the memory of persons still in active life, and the doctrine itself was one which was also in harmony with statements of elementary political principles, which, if false, as they have herein been held to be, have from the period of the Revolution of 1776 to the present moment had almost universal cur- rency with the various political schools known in this country. But, since 1861, a new history has been put on record, which requires some theory of our national existence, or of the location of sovereignty, to be found which shall not only be a consistent denial of all theories supporting a right of secession, but which shall be in harmony with the political action of the Government, as recorded in that his- tory ; even if such a theory leads to the denial of all the | elementary principles hitherto 'accepted. It has been the object of this essay to show that one of two conclusions only, as to our national existence, or the 1 Ante, pp. 99, 100. 530 THE QUESTION OF A REVOLUTION. The Alternative presented. location of sovereignty, can be reconciled with this new history, namely, either — That of the supremacy, in union, of the States volun- tarily remaining united (including the doctrine of possible State-lapse), of which States in union the government or- ganized under the Constitution is only the agent ; or — That of the supremacy of a number of persons compos- ing a " National " government, to whom the States are subordinate, and on whom they constantly depend for the continued exercise of the powers "reserved " to them, as expressed in the language of the Constitution. Whether either one of these conclusions involves the supposition of a successful usurpation, or of a revolution, is not material to the validity of the above alternative ; be- cause, in an} T event, the political occurrences of the last twenty years are to be accepted on some theory, — on the theory of a usurpation or a revolution, if none other can be found. 1 But if we are to judge from that utter failure of all the " overwhelming argument " produced before 1861, — a fail- ure which the "wager of battle" proved, if it proved nothing else, 2 — it is doubtful whether the mass of citizens will be able to study out, each for himself, any similar question of political duty, if such should hereafter arise as between persons composing a National Government, claim- ing sovereignty in the name of the people as a mass, and the States, — the organized political peoples of the States, as sovereign in union. The individual natural person known either as citizen or as subject must decide the question for himself and take on himself personally the responsibility for his decision. That is to say, there is no one but the supreme power- holder who can decide for the individual citizen or subject who that supreme power-holder is. It is always, in the 1 Compare ante, pp. 107, 333, 347. 2 Ante, p. 89, note 2. THEORY OF OUR NATIONAL EXISTENCE. 531 Position of the Legal Profession. last resort, a question of force as distinguished from a question of law ; it is a question of the place of that force which is the source of law, — the sovereign power of law- giving ; 1 and the question the individual asks of himself and of everybody else is, Who is the person, or who are the persons, who will compel my obedience? 2 But it is the essence of republics that they are states in which the forma regiminis, or government in the lower sense, is distinguishable from the forma imperii, or gov- ernment in the higher sense. 3 And in such states the cit- izen or subject, when called upon to recognize the supreme source of law, even to the extent of exposing his life for its defence, looks to those who have assumed the duties of the forma regiminis, the government in its lower sense, to point out to him who he is or who they are whom they re- gard as that supreme source of law, when they assume the right to administer any law at all. I have in another place noticed Judge Joel Parker's ani- madversions on a lecture by Judge Emory Washburn be- fore the Harvard Law School in 1864, which the former criticized as teaching the duty of the legal profession to construe and interpret the Constitution thereafter in such a way as to effect a reorganization of the general Govern- ment, while still regarding it as a government under a a written constitution as law. 4 But perhaps Judge Washburn meant only to indicate as a fact, or as an unavoidable circumstance incident to the then recent occurrences, the fact which I here wish to point out, — that the legal profession in general, and more particularly the judiciary in all parts of the country, must be expected to understand for themselves, and be ready and willing to explain to others, upon what theory of the possession of supreme power the action of the gen- 1 Ante, p. 97. 2 Ante, p. 98. 3 Ante, p. 302. * Ante, p. 360. 532 THE QUESTION- OF A REVOLUTION. Why Political Power is recognized. eral Government during and since the war is to be justified, and whether justified upon the supposition of a revolution having occurred since 1861, or upon some other view of history. 1 The great majority of persons in this country, as in in every part of the world, desire first of all to live each under his own vine and fig-tree, with none to molest him or make him afraid ; and each person of average intelli- gence knows that for this end there must be some holder of supreme political power, to give him protection. The mass of men may all want liberty above all things ; but they also know, practically, that whatever it may be that they call liberty, it must include protection if the liberty is something which all can enjoy. They know that liberty for one means law for others, and, if they did not know it before, an experience of war, and especially of civil war, tells them that law means power, and that power means somebody holding power. In short, with all their love for liberty for themselves, men want to know who it is whom they must obey, and who it is for whom they may be required to risk their lives in battle in order to render that liberty secure under his protection. But the history of this country, just as much as the his- tory of the rest of the world, shows that unless men can recognize some such supreme power-holder in existence, whose ability to secure to them liberty and protection is brought to trial, they do not gather together for fields of mutual slaughter. 1 The vocation of the legal profession is to show the connection between some rule of action and the will of the political superior. But the difficulty with these two learned jurists and others has been that they did not see that, though lawyers must profess to know who that political superior is, his ex- istence cannot be determined from the lawyer's point of view ; that is, as a question under law. Ante, pp. 98, 109. THEORY OF OUR NATIONAL EXISTENCE. 533 The Question of Fact presented. In point of fact, people in general do not take up arms to cany out abstract ideas about anything, not even about government or about the possession of sovereignty. The greater number in every country cannot have either the leisure or the learning to study abstract politics, even if they had the inclination ; nor do they regard any ab- stract political principles so important that anybody should be expected to lay down life for them. Whatever may be the meaning of the words " the gov- ernment of the people, for the people, and by the people," the fact is that there is no countiy in the world where any considerable number of persons have proposed to lay down their lives, or see the lives of their husbands, brothers, or sons laid down, that it "might not perish from the earth." The battle of Gettysburg was not fought for any such vague " idea." Those whose blood consecrated the victory on that field fell to support the authority of some visible possessor of sovereign power, who asked the sacrifice in the name of such authority. It has not been within the scope of this essay to ask whether the written Constitution of the United States is or is not a masterpiece of legislative institution of gov- ernment ; nor have I proposed either to advocati or oppose any actual or possible investiture of sovereign power, as being, or as not being, desirable in view of the moral or the material interests of the inhabitants of this country. I have not even concerned myself with history, except as that may indicate a now-existing fact ; and the only thing considered herein as the ultimate object of the investiga- tion has been, What is the fact, the now-existing fact, about this matter ? It is possible enough that the United States, such as I have supposed them to have been before 1861, or what- ever they were when they came into being in 1776, have had their day, and are things of the past, to be known here- 534 THE QUESTION OF A REVOLUTION. The new Sovereign. after only as consigned to the limbo 2 of political vanity, and that they have been succeeded by something entirely different, though still, unfortunately, bearing the same name, which some had long thought a blunder, 2 and which now must be regarded as a bore and a nuisance. For my own part, I am ready to recognize any fact in the world, as a fact. If the fact is that A., B., or C. is the actual su- preme power-holder in this country, I am eager to know and accept the fact ; and in such a matter to know and to accept are one and the same thing. 3 It may be that the only persons to whom allegiance is now due or will be due are the gentlemen — or hereafter, perhaps, the ladies and gentlemen — who shall occupy the executive, legislative, and judicial departments of the government now located at Washington. Or, it may be, as seems far the most likely, that the legislative branch of the Goverment is the approaching sovereign. As soon as that may be the es- tablished fact, I shall be as ready as any one to cry " Long live King Congress ! " till King Cromwell come. As long as the question of the actual seat of supreme power — the power from which the Constitution derives 1 . . " but store hereafter from the earth Up hither like aerial vapors flew Of all things transitory and vain, when sin With vanity had filled the works of men, Both all vain things, and all who in vain things Built their fond hopes of glory or lasting fame, Or happiness, in this or in the other life, .♦ all these upwhirl'd aloft Ply far off Into a limbo large and broad, since called The paradise of fools, to few unknown Long after." — Paradise Lost, b. iii., verses 445, 493. 2 Compare Dr. Woolsey's language, anle, p. 120. " The name ' United States of America' is an unfortunate one, and has doubtless led many minds into error." Mr. W. W. Story's letters to the London Daily News, 1862 ; pamphlet " The American Question," p. 48. 3 Compare ante, p. 355. THEORY OF OUR NATIONAL EXISTENCE. 585 Causes of the War distinguished. its authority as law — is an open one, it will be for the American citizen to consider whether those who demand his co-operation to sustain their measures of government are parties acting in the legitimate sphere of parties under a constitution as law, or are, in reality, contending in behalf of some claimant of supreme power above the Constitution. The question which has in this essay been presented as the essential subject of interest may be novel to our inex- perience and unwelcome to our national self-complacency ; but the difficulty of finding an answer to a question of that sort is no novelty in the history of the world, and the consequences of not finding for it a ready answer are not ' merely those which have left their record on many a blood- stained field of battle. Whatever may be the moral, economical, and social is- ues which hereafter shall be regarded as " settled by the war " they have had a sectional aspect, apart from any connection with conflicting political theories. This was caused by differences in conditions of soil and climate, which associated the Southern States in their industrial interests and social constitution, and consequently united them in their continued support of negro slavery, though it was always dependent on the legislative will of each State severally. It was due to this sectional character of the moral, eco- nomical, and social issues that the accidental occasion of the war — the causa causans, the slavery question — has concealed almost entirely the causa sine qua non, the doubt as to the political duty of the citizen. 1 It was this which caused it to appear, so far as it has been allowed to appear, as an essentially sectional issue, or one which could, by itself, divide the country into two sections, each com- 1 Ante, p. 107. 536 THE QUESTION OF A EE VOLUTION. Sectional Aspect of the Civil War. posed of contiguous States, necessarily agreeing in opinion upon that political question. 1 It seems very improbable that the States should ever again, in consequence of any geographical conditions, be discriminated into sections so antagonistic in interests and, as a consequence, so opposed on a question of moral feeling. But the question of political allegiance can hardly be imagined as a sectional one, unless in connection with some issue equally dependent on geographical and material conditions. So it may be expected, now that the immedi- ate occasion of the war, the slavery question, is removed, 2 that the question, To whom is allegiance due by each natu- ral person ? should receive a clearer recognition as one essentially distinct from all sectional differences. It was due to the sectional character of the Rebellion 3 that the severance of personal relations which was inci- dental to it, or to the war which grew out of it, was more like that which occurs between the subjects of previously friendly nations, in case of war, than like that whicji is an ordinary incident of rebellion and civil war. In spite of the bitterness of language, which was mainly due to differ- ence of feeling on the slavery question, the antagonisms of the war did not, to any great extent, reach down to that disruption of communal, social, and domestic bonds which is incidental to civil dissensions when the question of loy- 1 Compare Mr. Garfield's remarks of Aug. 4, 1876, ante, p. 467. 2 The question of equality or inequality of races in respect to the polit- ical capacities of the citizen, or, rather, the question, By what political authority those capacities shall hereafter he determined, in the case of any inhabitant of the States 1 remains as a legacy from the reconstruction measures, in connection with the question of a revolutionary change in the seat of sovereign power. Compare ante, p. 354. 3 I consider myself entitled to use this term, because, on the theory pre- sented herein, it can be seen to be rebellion, though I do not understand how it can be called such under any of the theories popularly received at the North. THEORY OF OUR NATIONAL EXISTENCE. 537 The Question which is not sectional. alty or disloyalty to a visible personal sovereign is clearly recognized as the question at issue. For this question of loyalty to a sovereign is one which, more than any other, has divided men in their political, social, and even domestic relations. It has severed them, not merely as nation against nation, people against people, or state against state, in their external relations, hut, more visibly and disastrously, as nations, peoples, states, in their internal relations ; dividing them in every subordi- nate organization of human society, as the constituent mem- bers of provinces, cities, towns, communes, families, house- holds ; marshalling them against each other, not as rival political parties, but as enemies by the law of nations, under hostile banners, awaiting the arbitrament of the sword. 1 If among the " unsettled questions " of the present mo- ment the question of the location of ultimate supreme power is to be included, it can no longer be regarded as one on which a " solid " mass of States will be opposed by another equally " solid " mass, or as one in which the people of the country will be divided in opinion mainly as they are also divided by geographical or climatic distinctions. If the question, hereafter, is to assume the form of a question of force, between those who support a central or National government, claiming to represent the ultimate sover- eign, and those who support the States as political organ- izations, sovereign in their union, the contest will be one dividing us as the constituent members of States, cities, towns, communes, families, and even households. If, in spite of all the " overwhelming argument " which either 1 This idea must have presented itself to Mr. Garfield's mind when, in commencing his reply to Mr. Long's proposition (ante, p. 498), he said, " Mr. Chairman, I should he obliged to you to direct the sergeant-at-arms to bring a white flag and plant it in the aisle between myself and my colleague who has just addressed you." 38th Cong., 1st Sess., Globe, 1503. 538 THE QUESTION OF A REVOLUTION. Position of the Supreme Court. side can produce, the appeal is again made to the ultima ratio regum on the same question, we shall then know what civil war really is. If such a day awaits us in the future, the jurists and the legal profession in all its departments will be as powerless to decide the question as they proved themselves to be in 1861. The Supreme Court itself may then try to raise its voice above the shouts of contending factions, hoping to appear on the scene of fraternal strife like the heralds waving the sacred olive-boughs between the ranks of jarring Grecians ; but no court of law can decide an issue upon which depends the validity of each justice's commission. In such a crisis of a nation's fate the voice of the ju- diciary cannot be that of the umpire or of the peace- maker : it should rather be like the sound of the trumpet which summons one or the other of two armed hosts to the onset. But if that trumpet give an uncertain sound, who shall prepare himself to the battle ? INDEX. Abbott's Digest, on Reconstruction, 211, n. Abstractions, how regarded, 163, n., 291. Adams, Professor C. K., on consolidation in France, 336, n. Mr. H. B., in N. Am. Rev., 345, 346. Mr. J. Q., on sovereignty of the people, 124, n., 334, 507, n. Aliens, position of, in civil war, 191, 193; confiscation of their prop- erty, 179-186. Allegiance, question of, stated, 209, 285; to whom due, 357, n. Amendment, adoption of three new articles of, 217, n. ; in connec- tion with reconstruction, 217; possible change by, 367; Revolu- tionary construction of, 371, 383; as conditions of admission of States, 256, n. ; effect of the fourteenth article of, 83, 381, n. ; case under the same, 370; effect of the fifteenth article of, 388, n. Amendment protecting States against suit, its history, 138. Argyll's Reign of Law cited, 457, n., 459, n., 462, n. Attainder, legislative, 84. Austin's Province of Jurisprudence, cited, 140, n., 303, n., 322, n., 329. Bagehot's The English Constitution, cited, 327, n., 522, n. Bateman's Political Law, etc., cited, 326, 328, 452. Battle, arbitrament of, 3, 89, 146, 353, 530. Belligerency, attributed in civil war, 49, 161, 189; of confederacy rec- ognized, 56, 57; judicial opinions on, 260. Belligerent, de facto, 162, 197; occupation, 177; government, 156. Bemis, on Hasty Recognition, etc., cited, 57, n. Bingham, Mr. John A., on the Civil Rights Bill, 216, n. ; on reconstruc- tion measures, 228, 236-244, 259. Bishop, Mr. J. P., in Monthly Law Reporter, 206, n., 270. Bismarck, Prince, expression of , cited, 96; his conversation with Gen- eral Grant, 488. Blaine, Mr. James, on reconstruction measures, 229, 239. Blockade, question of, in civil war, 49, 50. 540 INDEX. Boutwell, Mr. George S., cited, 221, n., 227, n., 265, n., 272, n., 278; on State suicide, 227, 239; in committee on reconstruction, 172, 224, 227; on the Declaration of Independence, 465, n. Bradley, Mr. Justice, in Keith v. Clark, 29-33, 156, 172, 176, n., 300, n. ; in the Legal Tender cases, 89, 473; in United States v. Klein, 76; on State continuance, 33, 214; in the Slaughter House cases, 373; in Collector v. Day, 383, n.; in the Ohio and Maryland Elec- tion cases, 388. Brightly's Digest, on insurrectionary States, 66, n. British Government's Proclamation of neutrality, 56, 187, n., 188, n., 207; notice of President Lincolu's proclamation, 193, 199. Brownson's American Republic, cited, 106, n., 117, n., 118, n., 119. n., 121, n., 127, 129, 133, n., 135, n., 145, n., 146, 149, n., 151, n., 154, n., 206, n., 297, n. Bryce's Holy Roman Empire, cited, 460, n., 475, n., 507, n. Buchanan, President, his views of the war, 54, n. Burlamaqui's theory of government, 130, n. Calhoun's theory, 99 ; his position in debate with Mr. "Webster, 132, n. Camp's Democracy, cited, 291. Carlyle on the civil war, 403. Catron, Mr. Justice, in the prize cases, 50. Centz, C. P., " The Republic of Republics," 511, n. Chase, Chief Justice, in Texas v. White, 8-15, 87, 128, 347, 442, 444, n. ; in United States v. Morrison, 53; in Merchants' Bank v. Union Bank, 53 ; Mrs. Alexander's cotton, 178, n. ; Armstrong's foundry, 65; Keppel's Adm'r v. Petersburg R. R., 52; Lane County v. Oregon, 103, n., 442; Georgia v. Stanton, 212, n. ; Legal Tender cases, 434, 436, 437; Shortridge v. Macon, 78, 80; United States v. Klein, 75; on contraband of war, 184, 185, 196, n. ; his definition of a State, 9; citation of Penhallow v. Doane, 129; view of the party belligerent, 53; on confiscation, 67, 77; on the Emancipation Proclamation, 76; on treason, 79, 80; on the Fourteenth Amend- ment, 83; on State continuance, 9, 212, n., 214, 257; Mr. Pom- eroy's reference to his view, 442. Chase's Decisions in the Fourth Circuit, report of, by B. F. Johnson, cited, 52, 80, 82, 83, 84, 85, 86, 96, 300, n. Choate, Rufus, letter to the Maine Whigs, 97. Cicero, a maxim of, in civil war, 514, n. Civil war, as affecting neutrals, 18S. Claims, cases in the Court of, 180, 181. INDEX. 541 Clergyman's point of view, 527, n. Clifford, Mr. Justice, in the Prize cases, 50, 61, n.; Miller v. The United States, 71; Tyler v. Defrees, 73; Ex parte Virginia, 382; the Election cases, 388, 389; Tennessee v. Davis, 411, 420; the Legal Tender cases, 437 ; on belligerency, 61, n. ; on confiscation, 76-78, 165, n., 171. Coercion, of war and of municipal law, distinguished, 502. Colonies, the American, in the Revolution, 123, 125, 510. Confederate Government recognized as belligerent by foreign powers, 56, 57; judicial presumption against its acts, 7. Confederate States, status of, 6, 34, 39; judicial presumption in favor of their acts, 6. Confiscation Acts, principle of the, 51, 62, 76, 170-194, 197, 199, 201, 320; how regarded in the Supreme Court, 51, n., 62, 64, n., 67, n., 79-81. Congress, the Revolutionary, 315, n. Congress, theory of its legislative power during the Rebellion, 197-202; future position of, 534. Congress, Acts of, 1861, July 13, relating to the blockade, etc., 50, 58, 187, n.; August 6, to confiscation, 62; July 20, July 29, July 31, to suppression of rebellion, 59 ; 1862, July 2, July 17, to confisca- tion, etc., 59, 60, 62, 79; 1863, March 3, to claims, 185, n., 193, n. ; March 12, to abandoned property, etc., 59, 62, 67, 185, n., 193; 1864, July 2, to the same, 59; 1865, March 3, to Freedman's Bureau, 216, n. ; 1866, April 9, to civil rights, 216, n. ; 1867, March 2, to re- construction measures, 23; July 19, to the same, 40, 59 ; 1868, June 22, to admission of Arkansas to representation, 217, n. ; June 25, to admission of other States, 217, n.; July 27, to claims, 193; 1869, April 10, to admission of certain States, 218; December 14, to removing disabilities, 81, n. ; 1875, March 1, to civil rights, 380, 385; enforcement, 371. Congress, Resolutions of, 1861, July 22, on the purposes of the war, 42, n. ; 1865, Feb. 18. as to Tennessee as a rebel State, 218, n. ; 1866, July 24, restoration of Tennessee to representation, 218, n. ; 1868, July 20, excluding certain States from representation, 41. Conquest of States, doctrine of, 258, 260, 272. Constitution, the written, two doctrines of its nature, 99, 101; how regarded as a fetish, 95, 305, 321, 339, n. , 357, 516 ; as a contract, 100, 116-118, 122; as a grant by the States, 102; as a law given by one people, 103-115;. views of the framers of, 298, 417; from whom derived, 141, 296; its force as law, 306; construction of, in future cases, 368. Constitution, the, as fact, 130, 319. 542 INDEX. t Constitutions, their source, 497. Contraband of war, cotton as, 77, 178, 183. Contradictions in terms, some, enumerated, 90. Conway, Mr. M. F., speech of, in 1861, 260. Cooley's Constitutional Law, cited, 359, n. Constitutional Limitations, cited, 125, n., 132, n., 147, n., 257, n., 509. view of sovereignty of the people, 106, n., 114, n., 362, n. Cooley on the Declaration of Independence, 509, n. Cox, Mr. S. S., in debate, 500, n. Curtis, Judge B. E,., on executive power, 75, 203; letter of, 268; theory of, 271. ^Curtis, Mi-. G. T.,his article in Harper's Magazine, 384; Discourse by, 101, n., 103., n., 106, n., 115, n., 294, 300, 337, 361, 448, n. 492, n. ; History of the Constitution, 134. n., 482, 485; Life of Webster, 115, n., 440, n.; Oration, July 4, 1862, 101, n. Dana, Mr. R. H., his argument in the prize cases, 169; on the Eman- cipation edict, 347; on the supremacy of the general Government, 353; his edition of Wheaton, see Wheaton. Davis, Mr. Jefferson, indictment of, 79, 82; his Rise and Fall of the Confederate Government, 511, n. Davis, Mr. Justice, in United States v. Anderson, 67; in Tyler v. Defrees, 72. Declaration of Independence, 96, 297, 455, n., 464, 509. De Maistre, on Political Constitutions, 131, n. Democratic oligarchy, descriptive of form of government, 140, 342. De Tocqueville, cited, 102, n., 291, n., 301, n., 313 n., 336, n. Dicey, Mr. A. Y., letter to The Nation, 330. n., 331, n. Doolittle, Senator, in debate, 276, n., 282, n. Draper, Dr. J. W., History of the Civil War, 97, 474, n. Duval, Judge, in Habicht v. Alexander's Ex'r, 194. Eldridge, Mr., in debate on reconstruction, 237, 240. Elective franchise, political basis of, 404-409; Acts of Congress on, 386, n., 396, n. Emancipation, proclamation of, 195, 347, n., 519, n. English view of the civil war, 56, 299, 496. Falck on popular sovereignty, 114, n. Federalist, cited, 97, n., 99, n., 132, 303, n. Ferris, Mr. A. F., in North American Review, 461, n. Fessenden, Senator, in debate, 225. INDEX. 543 Fetish worship, its character, 516. Feudal relations, no analogy with the Union, 206. Field, Mr. Justice, in Greathouse's case, 60; Miller v. United States, 71; Tylers Defrees, 73; Williams v. Bruffy, 162, n., 164; Wal- lack v. Van Riswick, 177, n. ; Carlisle v. United States, 185, n., 191, n.; Spott v. United States, 262, n. ; Munn v. Illinois, 370; The Election cases, 398, n., 399; Ex parte Virginia, 382; Tennessee v. Davis, 411; The Legal Tender cases, 437; views on confiscation, 76, 78. Finck, Mr., in debate, 244, n. Foot, Senator, see Redfield's letter to. Force, the foundation of law, 307, 497, 502. Forma regiminis and forma imperii, 293, 302, 526. Founders of the Constitution, 401, 465, n. Franchise, see Elective franchise. Frederick, of Prussia, his code, 336, n. Frothingham's Rise of the Republic, 304, n., 453, n., 509, n. Garfield, James A., President, Inaugural of, 443, 450, 465, 524, n.; remarks in Congress, January 28, 1864, 504; April 8, 1864, 498, 502, 537, n. ; January 13, 1865, 487, n. ; December 16, 1869, 457, n. ; August 4, 1876, 451, 465 ; March 29, 1879, 466, n. ; July 27, 1879, 463, n., 491, n. 507; his position on reconstruction, 468; citation of Pinckney and Wilson, 481 ; on the location of sovereignty, 485, n., 507. Georgia, existence of the State, 18, 21. Government, action of, after war, significant, 4; senses of the word, 130, 140, n., 303; State, as illegal or usurping, 149, n., 153; pre- sumption as to its acts, 156; of the United States, its tenure of power, 131, 303, 341, 363, n. Grant, General U. S., conversation with Bismarck, 488. Green, Mr., argument of, in Davis's case, 163, n. Grier, Mr. Justice, dissenting in Texas v. White, 16, 89; opinion in the Prize cases, 17, n., 49, 89; in the Legal Tender cases, 437; other opinions by, 17, 159, 169. Halleck's International Law, 178, n. Hamilton, Alexander, on sovereignty, 122, n. ; his theory of govern- ment, 402, n. Harlan, Mr. Justice, in Keith v. Clark, 27, 28, 149, n. ; on belliger- ency, 61, n. Hayes, President, message of, 365, n., 399, n. Herder, a remark by, 512, n. 544 INDEX. Hildreth's History of the United States, 138, n. Hillard, Mr. George S., in the Law Review, etc., 205, n. Hillebrand, Karl, Lectures, 461, n., 512, n. Historical basis of sovereignty, 105, 141. Historicus, Letter of, in the London Times, 57, n. History, distinguished from doctrine, 99 ; variations in statement of, 99-104. House of Representatives, resolutions of July 22, 1861, 42, n. Howe, Senator, in debate, 224; resolutions offered by, 255, 273, n., 278, n., 281, n. Hughes, Judge, decision by, 174. Hurd, Mr. Frank H., remarks by, 488, n. Hypothesis of the people, 114, 440. Ideas, as law, 278, n., 461; as engaged in war, 463. Iredell, Justice, in Penhallow v. Doane, 10, n.,.129. Jackson, President, his theory of the government, 103, n. Jameson's Constitutional Convention, cited, 106, n., 110, n., 114, n., 127, n., 128, n., 323, 325, 326, 355, 361, 364, 366, 440, n., 474, n., 508, n. Jay, Chief Justice, in Chisholm v. Georgia, 122, n., 137, 141, n., 312, 329. Johnson, Gen. Bradley T., see Chase's Decisions; his view of the war, 161, n., 300, n. Johnson, President, his proclamation of April 2, 1866, 39; his procla- mation of amnesty, 81 ; his theory of government, 208 ; his refer- ence to Mr. Lincoln's proclamation, 57; his plan of reconstruction, 38, 227, n., 232, 251, 275, 288, n. Johnson, Reverdy, Senator, remarks in debate, cited, 224, n., 231, 254, n., 283. Judicial opinions, force of, generally, 215, 350; on the States of the Confederacy, 6, 17; as possibly indicating a revolution, 368. Judiciary, relation of, to political questions, 5, 105, 215 ; alternative for, 107; inconsistent positions of, 207. Jurist, the London, 184, n., 205, n. Kent's statement of the origin of the Constitution, 111, n. Law and ethics distinguished, 515, n., 527, n. Law Magazine, London, 202, n., 312, n. " Law of Freedom and Bondage," reference to, 326, 361. Laws of personal extent, 424, n. INDEX. 545 Law, sovereignty of, as improper term, 96, 97. Lawyer's point of view, when improper, 109, 211, n., 284, n., 443. Lewis, Sir George Cornewall, cited, 291. Liberty bell, its motto, 465, n. Lieber's Political Ethics, cited, 317, n., 331, n., 332, n. ; Civil Lib- erty, cited, 313, 332, n. ; Miscellaneous Writings, cited, 475, n., 518; views of law and sovereignty, 521, n. ; of nationalism, 475. Lincoln, President, his view of States in union, 142, 483; of States in the civil war, 54; of treason, 80; of attainder, 177; on violation of the Constitution, 514; his policy of reconstruction, 35, 36, 149, n., 288, n.; on questions as abstractions, 288; on loyal people, 149, n. ; other references to, 251, 252, 275, 319; date of his death, 287, n. ; his inaugural, cited, 98 n., 143, n., 144, n.; his message, July 4, 1861, cited, 142, 143, n., 483; his proclamations, on the object of the war, April 15, 19, 1861, 54, 55; on emancipation, 195, n., 201, n., 519 n.; his letter to Colonel Hodges, 470, 513; his Gettys- burg address, 523. Long, Mr., of Ohio, debate on his expulsion, 498. Lords, debate in the House of, on the President's proclamation, 193, 199. Loring, Judge, in Collie v. The United States, 181, 190. Mr. Charles G., his pamphlet, cited, 269, 280, 289, n., 449, n. Louisiana, reconstruction of, 245, 258. Lowell, Mr. James R., in the North American Review, 271, 278, 289, n., 302, n., 347. Loyal citizens composing State, 149, n., 252. Loyal Publication Society, 88, 518, a. Lushington, Dr., cited, 184, n. Lyons, Lord, letter of, to Lord John Russell, 187, n. Macaulay's History of England, cited, 233, 469, n. Machiavelli's principle, 303, n. Macllvaine, Dr., in the Princeton Review, 124, 334. Madison, James, letter to Rives, 101, n., 104, n., 116, n. ; letter to Everett, 121, 122; his view of the Constitution, 130, 324, n., 402 n.; in the Federalist, 303, n., 402, n. Maine, Dr., on Ancient Law, cited, 507, n. ; on sovereignty, 329, n., 462. Marsh, Mr. George, P., letters to The Nation, 127, 128, 273, n. Marshall, Ch. J., his view of the sovereign people, 312, n., 338, n., 429 n. ; his language in Cohens v. Virginia, 429 , 430 ; his influence on the Constitution, 479, n. ; time of his chief-justiceship, 311, n. Mexicauization, a political term, 525, n. 546 IXDEX. Miller, Justice, in Texas v. White, 18; in Keith v. Clark, 22-26, 155, 157-159; in Armstrong's foundry, 64; in Tyler v. Defrees, 72;- in United States v. Klein, 75; in Sprott v. The United States, 178, n., 196, n., 201, n.; in the Slaughter House cases, 370, 439, n. ; in the Legal Tender cases, 437. Milligan, Judge, in La Plante's case, 187, n. Monthly Law Reporter, cited, 206. Morgan, John T., Senator, in North American Review, 437. Morrill, Lot C, Senator, in debate on military government, 258, n. Motley, Mr. J. L., letter to the London Times, 507, n. Mulford's, Dr., The Nation, cited, 475, n. Nation, The, letters of Mr. Marsh in the, 273; of Mr. Pomeroy, 441, n.; of Mr. Dicey, 330; citations from, 342, n., 521, n. Nation, hypothesis of the sovereign, 108, 240, n., 361. will of, how known, 239, n. National government, use of the term, 361. • Nationalism as a law, 452, 457. Nationality, scientific basis of, 98, n. Nebraska, admission of the State of, 254, n. Necessity, argument from, 201, 513. Nelson, Mr. Justice, In re Egan, 44, n.; in the Prize cases, 50; in Mauran v. Ins. Co., 50, n., 58; in Georgia v. Stanton, 212. Neutrality, British proclamation of, May 13, 1861, 58, 188 n., 207. Nott, Judge, in Hill's case, ISO, 181, 186-188, 193, n. ; in Green's case, 190, n. ; in Harrison's case, 194, n., 198. O' Conor, Mr. Charles, argument in J. Davis's case, 84, 163. n. Palmer, Sir Roundell, his argument, 317. Parker, Joel, Judge, his lectures, cited, 359, 531; articles in the North American Review, 203, 267, n., 275, 279, 437. Parties, distinction of political, 524. Passion for power the foundation of government, 307. Patterson, Judge, in Penhallow v. Doane, 315, 316, n. People, meaning of the word, 109, 523; in the Constitution, 112; of the colonies, 125; idea of the sovereignty of, 104, 110, 330; as a mass not sovereign, 112; not the authors of the Constitution, 114; the political, as States, 125, 126, 132. Phillimore's International Law, cited, 121, n., 134, n., 162, n., 187, n., 191, n., 262, n., 317, n., 322, n. Pinckney, Charles Cotes worth, his view of the States, 481. Piracy, President's proclamation on, 193; relation to civil war, 206. INDEX. 547 Political and legal knowledge distinguished, 124. Political department, the, 20, 160, 213, 214, 249, 251, n. Pomeroy, J. N., on Constitutional Law, cited, 110, n., 114, n., 118, n. , 124, n., 127, n., 139, 140, 439; on the elective franchise, 404,409; mistaken as to Brownson's view, 129, n. ; reference to Rome, 474, n. ; on the sovereignty of the nation, 324-328, 334-337; on authority of the Supreme Court, 352; his agreement with Chase, Ch. J., 442. Postliminy, effect of, 178, 195. Property with hostile character, 197, n., 200. Raymond, Mr. H. J., remarks in Congress, 239, n. Rebellion, date of close of, 4, n. against whom, 151, 354, n., 461. the term justified, 536. Reconstruction, committee on, 208, 213, 224, n. ; report on, by ma- jority, 42, 88, n., 219, n. ; by minority, 48, 263, n. ; view of, taken by the Supreme Court, 213; in Abbott's Digest, 211, n.; theories of, 222, 408; a consequence of, 536, n. ; bill for, by H. W. Davis, 37; a rejected bill for, 221, n.; bill of March 2, 1867, 220-232; action of Congress on, 39-41, 216, 235, 40S. Reddie, James, on emancipation by war power, 196, n. Redfield, Judge, on the civil war, 205, n., 272, n., 269, 444-449. Representatives, election for, see Elective franchise. Republican government, guaranty for, in connection with recon- struction, 235-256; bills for, 37, 231, n. ; Supreme Court on, 249; Bradley, J., on, 432, n. Reserved powers, 114, 131, 363. Resolutions, see Congress. Review, North American, cited, 95, n., 178, 196, n., 203, 278, 279, 347, 437, n., 461, n. Review, Princeton, cited, 124, 334. Revolution, doctrine of right of, 189, n., 359, n., 498; how recognized, 340, 355; of 1776, its character, 123, 314, 501; question of, since 1861, 107, 333, 346, 368, 408, 530. Rights, individual, their historical basis, 376; the civil, bill for, 380. Roman empire, comparisons with, 474. Russell, Earl, on the civil war, 491. Secession, theory of, 88; by what reasoning justified, 286; alternative, on resisting it, 105; ordinances, their effect, 145. Shellabarger, Mr., in debate, 232, 247, 258. Sherman, Senator, in debate, 231. Slavery, its relation to the Rebellion, 107, 467, 535; its abolition by States, 376, n. ' 548 ESTDEX. Smith, Mr. Goldwin, Ms view of the civil war, 496, n. Social compact, influence of the theory, 121, 130, 148, 309, 310. Sovereignty, defined by Worcester, 104, n. ; views of its existence, 96, 106, 507, n.; its possession above law, 96, 97, 98, 141, 508; its in- divisibility in possession, 96, 107, 120, 141 ; its distribution in exer- cise, 139, 299, 301; judicial views of, 418; new elements in the question, 105; always transferred by force, 121; none in individ- uals, 122, 124; prospect of the question in the future, 526; held by States in union, 127, 144, 147; of the people, theory of, 140, 330. Sprague, Judge, in the case of the Amy Warwick, 49, n., 166, 189, n., 199, n., 263, 268, 271, 275. Stanbery, Atty.- General, argument, 252, n., 257, n. State, definition of, by Chase, Ch. Justice, 9; theory of a loyal, 148, 157; corporate responsibility in secession, 148; status of, apoliti- cal question, 211, 279, 282. State governments, distinguished from States, 121. State rights, foundation of the doctrine of, 107. State suicide or lapse, demonstrated as fact, 146, 150, 152, 154, 201, 316; committee on reconstruction on, 222, 227, 274; see Brown- son, Howe, Sumner. States, the political people of, recognized, 123. States of the Union, question of their original sovereignty, 99, 100, 508 ; if bound by contract, 100 ; doctrine of grant by, 102 ; not under legal obligation, 305; holding sovereignty in union, 103, 144, 147, 315; never severally sovereign, 131; origin of their united existence, 126, 141, 508; their continuance only in voluntary union, 103, 132, 135, 136, 141; recognized internationally, 317. States of the Confederacy, question of their status, 4, 6, 50, 57, 59, 90; recognized as belligerents, 50, 56, 57, 59, 170, 192; doctrine of con- quest of, in report on reconstruction, 222, 227, 274 Stephen, Sir James Fitz James, essay on Liberty, etc., 492-497, 502. Stephens, Mr. Alexander H., his course in the war, 88, n., 275; view of sovereignty, 139, n. ; History of the War, 208. Stevens, Mr. Thaddeus, remarks in Congress, 219, 224, 225, 232, 243; his position, 244, 257, 289, n. ; on sovereignty, 433, n. Stickney, A True Republic, cited, 301, 391. Storrs, Rev. R. S., Jr., centennial address, 4S6, n. Story, Mr. Justice, his period on the bench, 311, n. ; theory of the peo- ple as sovereign, 109, 111, n., 440; decision in La Santissima Trini- dad, 184; his theory of law, 521 ; of the Declaration of Independence, 501, n. ; Commentaries, cited, 96, n., 97, n., 122, n. ; historical view taken in, 316-32S; on the election of representatives, 395, 402, 406. Sifcory, Mr. W. W., letter to the London Daily Xews, 534, n. INDEX. 549 Strong, Mr. Justice, on confiscation, 76, 78; in Miller v. United States, 70; in Planters' Bank v. Union Bank, 175, n. ; in Munn v. Illinois, 370, n. ; in Tennessee v. Davis, 375, 411; in the Virginia cases, 379, 3S1, n. ; in the Legal Tender cases, 437. Sumner, Senator, his claims for legislative power, 202, n. ; resolutions offered by, 265, n., 274 ; his view of State suicide, 273, n., 276, 233. Supreme Court of the United States, extent of its authority, 350; con- tradictions by, 90; its recognition of sovereignty, 108; on the divisibility of sovereignty, 418; its theory of the civil war, 320; doctrine of amending the Constitution, 383 ; alternative forced upon it, 105, 107; its position in civil war, 538. , Swayne, Mr. Justice, on the seceded States, 215, 256, n. ; in Texas v. White, 18; in White v. Hart, 18-21, 305; in Hickman v. Jones, 51; in McVeigh v. United States, 68; in the Slaughter House cases, 374, 413; in the Legal Tender cases, 437. Taine's Ancien Regime, 313, n., 314, n.; a remark by, 509, n. Taney, Chief Justice, in the Prize cases, 50; in Dred Scott's case, 135; a dictum of, 253. Tennessee, eastern, its status, 163, n. Texas, existence of the State, 8, 12, 159; existence of its govern- ment, 13. Thayer, Mr. , in debate, 230, n. Tobacco, as contraband of war, 178. Treason, question of, in courts of law, 60 ; no decision on, since the Rebellion, 80, 83, n. ; contradictory views of, 203, 205. Treaty of Paris, 1783, 133, n., 318. Tucker's Blackstone, 147, n. Ultramontane view of government, 139, n. Union, views of its nature, 87, 88 ; not a name for the general govern- ment, 102 ; in what sense saved, 490. United States, name why proper, 140; Dr. Woolsey and W. W. Story's opinion, 534, n. ; not a name for the general government, 102, 440; what are the, 130, n., 151, 297, 305, 497. Upshur's review of Story, 501, n. Usurpation, to be accepted under alternative, 107, 333, 347, 355. Virginia, resolution of the State in 1782, 504, n. ; in ! 579, on the action of Judge Rives, 90, n. Western, case of the State, 163, n. Von Hoist, cited, 93, 96, 106, 121, n., 144, 147, 161, 2S1, 314; on indi- visibility of sovereignty, 96, 106. 550 INDEX. Waite, Chief Justice, in White v. Hart, 18-21 ; in Keith v. Clark, 27 ; in Young v. United States, 178, 182 ; in United States v. Dickel- man, 191, n., 193, n. ; in Munn v. Illinois, 370, n. ; in United States v. Cruikshank, 377, n. ; on cotton as contraband, 77; on belligerent right of a sovereign against rebels, 78; other citations of, 160, 164, 415, n. War, its relation to political facts, 2, 354, n., 497; law of, for confisca- tion, 174, 197, 238, n. ; for emancipation, 199, n. ; in reconstruction, 258 ; the civil, its causes, 107, 535. Washburn, Judge Emory, lecture by, 360, 531. Webster, Daniel, works, cited, 305, 311, 344; his theory of the Consti- tution, 337, 440, n. ; his argument in the Senate, 96, n., 99, n. ; on the social compact, 310; on sovereignty, 507; Mr. G. T. Curtis on his views, 115, n., 272. Welling, Mr. J. C, on the emancipation edict, 196, n. Westbury, Lord Chancellor, cited, 199. Wheaton's International Law, cited, 162, n., 184; Dana's notes to, 165, n., 167, n., 170, 177, 178, 179, 187, n., 191, 198, 203, 206; Law- rence's notes to, 162, 166, n., 184, n., 187, u., 191, n., 196, n., 199, 206, 263, n. Whiting's War Powers, 81, n. Williams, Senator, in debate, 223, 224. Wilson, Henry, Senator, in debate, 246, 298, 329 ; his history of Recon- struction, cited, 214, n., 219, n., 289. Wilson, James, Judge, in Chisholm v. Georgia, 137, 498, n. ; his view of States as given by Mr. Garfield, 484; by Mr. G. T. Curtis, 486. Wood, Sir W. Page, V. C, cited, 317, 319. Woolsey's Political Science, cited, 102, n., 120, n., 125, n., 137, n., 207, 303, n., 305, n., 322, 520, 534, n. Wright, Senator, in debate, 238, n. Writers on the civil war, 452, 456. Yeaman, On Government, cited, 323. VlAsT-Ho^U. University Press : John Wilson & Son, Cambridge.