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But is the amending power the real sovereignty of our system? Sovereignty is defined to be "the ultimate, absolute, illimitable power that exists somewhere in every independent society." The power which can amend the Constitution, he says, is illimitable, and this omnipotence the sovereignty. Now, the Constitution provides that "the United States shall guarantee, to every State in this Union, a republican form of government." This amending power is restrained. An amendment, which deprives any one of the States of its republican form of government, is unconstitutional, and not binding; it can only be enforced by physical power, though assented to by the requisite number of States, to make a legal amendment. Again, the very article giving the amending power provides "that no State, without its consent, shall be deprived of its equal suffrage in the Senate" by any amendment to the Constitution. How does this agree with his definition of sovereignty-that illimitable power which may re-partition the powers of the States and the composite State ad libitum-may reduce the central agency to a shadow, or erect it into an empire? This power, then, is certainly not sovereign, and "Congress is not sovereign-for it has only powers affirmatively granted," and sovereignty must exist "somewhere in every independent society." Where, then, does it reside if not in the States? It will not answer to say that it belongs to the States united, for this would but be a recurrence to the previous condition of the States; it belonged to them under the Articles of Confederation. So it belongs to any association of States.

As to the doctrine of allegiance, he says it is an axiom of political science, that where the sovereignty abides, there the allegiance is due, and unless there is allegiance there can be no treason, and that the Constitution recognizes that treason may be committed against the United States. The inference he wishes to draw from this is, that as the Constitution recognizes that treason can be committed against the United States it also recognizes that the United States -the composite government-is sovereign; a very fair inference too. But the State laws also provide for treason against the States, and have always so provided, and may not there be the same inference from this as to the sovereignty of the States? His statement that, as regards the States, this crime is not treason, though properly punishable as such, is pure assumption, if his argument that the United States is a composite government, in his sense of the term, is not sound. Should it not rather be said that the crime, which the United States Constitution denominated treason, is not properly treason, though justly so punishable?

At page 337, he says, that after the war, all acts must be regarded from the point of view of the victor, and at page 350, he repeats, the view of the conqueror becomes the law as to matters involved in the contest, and the Supreme Court decisions should be regarded as conclusive. Now, at this position, no reflecting Southern man is disposed to murmur. It is not understood that the Supreme Court has adopted a view of the Constitution which, as opposed to the several States, makes the United States a composite sovereign State -as France, England, or Russia, is sovereign.

While upon this subject, it may not be out of place and uninteresting to add a little to the States rights view of the Federal Government which is very well, though not fully, set forth on pages 313 and 314 of the article, and to arrive at a position from which the reader may view the late unpleasantness through legal spectacles, not put upon his eyes by the United States Government. It is well stated, on the pages above cited, and by an able argument on pages 317 and 318 (which is hereby adopted), clearly proven, that the "Constitution was beyond controversy, not adopted by the people, but by the States as States; that it was a compact between the States to which they became parties as States." The true point of controversy is stated to be this: What sort of compact was the Constitution, and what was the result of its adoption? His view has been sufficiently quoted and discussed. By the way, what is a little remarkable about his view, during all the discussion which preceded the adoption of the Constitution, and in all that has taken place since, throughout the elaborate commentaries of Story, and in all the "Great Debate," not one argument has been advanced, so far as can be ascertained, to show that the States by the adoption of the Constitution as a compact between previously existing, sovereign States, became blended into an entity-and the United States a composite State, in his sense of the term, except the ingenious effort of the writer in the April number. This should excite close scrutiny of his reasoning, and, if found false, add respect, if not weight, to the views of the old fathers, Jefferson and Madison, as to the nature of the compact and the result of its adoption. They, with Mr. Calhoun, state it to be a constitutional compact between the States, the result of which was the creation, by the States in their sovereign capacities, of the United States Government. In other words, the United States is the creature of the States, and if the powers granted to the States united, be valid, it is solely because they are granted; and if the granted powers are valid, because granted, all other powers not granted must not be valid. And whether the

Constitution be called a "social" or a "constitutional" compact, it is a written compact enumerating particularly the powers granted, and reserving all others to the States-that this particular enumeration necessarily explains and limits certain general phrases copied from the old Articles of Confederation; that it is a plain principle, founded in common sense, and illustrated by common practice, and essential to the nature of compacts, that when resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort whether the bargain made has been violated; that there can be no authority above the States-the parties-the creators-to say, in the last resort, whether or not the compact has been violated, or judge of the granted or reserved powers; that the States have an equal right to judge for themselves, not only of usurpations and infractions, but also, in Mr. Jefferson's language, of the mode and measure of redress; that when it is claimed that the States granted this right of judging in the last resort to the United States, the Constitution, as it exists, must be produced, and the clause pointed out which, beyond doubt or cavil, surrenders a right endangering the very existence of the States; that it is no answer to say, that this right, if allowed to the States, would defeat the Constitution and destroy the Government (the creature), because, to allow it to any other power than the States, would be to destroy the States-the creators; that (adopting language quoted above in regard to the amending power), "the only possible security in the nature of things against the exercise in any given manner of this power, lies in the genius of our people," who may, if they desire, alter the form of government, and grant such powers as they see proper; that, however true it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the other departments of the Government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments of the Federal Government, hold their delegated trusts; that on any other hypothesis, the delegation of judicial power would annul the authority delegating it, and the concurrence of this department with the others in usurped powers might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.

This reasoning, which is Mr. Madison's, answers the subsequent

views of Mr. Story, who contended that each department of the
Federal Government, and each member of every department, is the
interpreter of the Constitution for itself in the first instance, when-
ever called upon to act under it. If the question was not of a
nature to be capable of a judicial decision, he considered such
determination by the department called on to act, whether it be
the executive or the legislative, to be final. If it be capable of
judicial investigation, he regarded the judicial power, and the Su-
preme Court of the United States as the head thereof-the final
arbiter of the constitutionality of the act. He allowed no interpre-
tation by the States. He denied that the United States Govern-
ment is a compact between the States in their sovereign capacities
as parties, but insisted that when the evil of infraction or encroach-
ment becomes no longer endurable, resort must be had by
the people and not by the States, to the ultimate right of resistance.
Even this view recognizes the right of resistance; it only refers to
the people instead of the States the right of ascertaining the usurpa-
tion or infraction in the last resort. But the answer as given above
seems conclusive, as far as reasoning can make it.
If it is once
conceded that the Constitution is a compact, as stated above, the
logical conclusion is irresistible, that the States have the ultimate
sovereignty, and to them allegiance is due by the citizens respect-
ively; that acording to common sense, they are the judges in the
last resort of usurpations and infractions of the Constitution which
they made, as well as of the mode and measure of redress. Mr.
Story and Mr. Webster felt the force of this reasoning and admit-
ted it, but denied the premises. Our writer admits the premises
but denies the conclusion.

For the purpose of showing what shifts were resorted to to evade the unanswerable logic of the advocates of States' rights, another view of the Constitution, by a certain school, the chief exponents of which were Mr. Story and Chancellor Kent, may be barely noticed. It was this: That the independence of the United States was a joint and not a separate independence-the logical result of which doctrine is that the States are the creatures of the United Colonies, and all the rights and prerogatives of the States are the gifts of the general government-the United States-and all power not delegated to the States, remains in the Federal Government. This view flourished awhile, and though long since exploded by reason, and by an express amendment to the Constitution, has been

physically enforced by the late war. According to our writer, the Federal Government, in a contest with any of the States, can roll up and set aside the Constitution, and any powers which it can physically exercise, are rightful. The war power of the Government is not to be restrained to its "ordinary sovereign or municipal rights," as defined by the Constitution; but military governors and military courts may be appointed at will by the Federal Executive, and Confiscation and Abandoned Property Acts be passed by the Federal Legislature, according to the exigencies of the case; and as a consequence of this, in a war with foreign nations-whenever the war power is called into requisition-the ordinary sovereign rights of the Government may be overstepped and the Constitution disregarded; and this is the logical result of a blending into a composite State. Now, while these acts may be sustained by the United States army in time of war, the question recurs upon the return of peace-at least in this narrowed form-will the acts of the Federal Government professedly performed "to put down rebellion and punish treason," and which could be justified, according to the laws of either national or civil war, only upon the hypothesis that the United States Government is sovereign, in the international law sense of the term (contradistinguished from its ordinary sovereignty), be held valid when they are in a condition. to be questioned before the Supreme Court of the United States, whose judges are sworn to protect the Constitution?

Our writer has labored very industriously to prove that the Federal Government, in the late war, could exercise both belligerent and sovereign rights. The view of the Government being established by the result of the war, this elementary principle of the laws of civil war will readily be admitted.

But the acts above can not be justified as the exercise of belligerent rights; because, in many instances, their subject-matter was neither prize, booty, nor contraband of war, nor things appertaining thereto; but more especially because, viewed as a belligerent attempting to enforce belligerent rights, the penalties of rebellion and treason are totally inapplicable. True it is, that after the war the successful party can assume its ordinary sovereign rights; but this does not answer the question, for it could exercise ordinary sovereign rights during the war. He answers it by saying the warrant is to be found in the expansion of the war power of the United States Government growing out of the emergency of

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