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Vice-President? Because the States composed the elements of the Union and of the National Government, and were thought indispensible barriers against the encroachments of the general and central power. Throughout the whole discussions on the Constitution, the wisest men of the day showed their timely fears of centralization. No one was allowed to vote for members of the House but such as the States permit, or to whom the right is granted by the State governments. Besides, how can apportionment, from time to time, be made among several, and yet those several be considered but one? Congress may erect forts and light-houses, and yet Congress cannot acquire one foot of territory in a State without its permission. Why give the power
to regulate commerce between them if for all purposes of the Union they are but one? Or why a remedy given between citizens of different States or between States ?
It is said that the Legislature cannot grant to the people, but the people may grant to the Legislature. The Legislatures everywhere have granted the right to vote, have constituted citizenship within the limits of its own State, and have granted corporate and municipal powers to legislate, punish and tax. Is tho case of Fletcher vs. Peck and the Yazoo Lands forgotten? The Legislature, we have just seen to our sorrow, may grant lands, pensions and patents, and the people even express their grateful thanks to their servants for their bountiful favors. That the servant should become the beneficent master, is only the natural result of popular sovereignty.
The reference to conventions was not made a part of the Constitution. You must look aliunde to find the fact. It was an outside suggestion--an afterthought to secure popularity. Nothing more. The vitality was given to it by the Legislatures of the States. The words “ we the people” were first stated to be of the States; but not knowing which States, the States were stricken out, and the words retained were mere form, and constituted no substantial part of the Constitution, and the declared requisition that nine of the States should be necessary to ratify the Constitution, is a distinct and unmistakeable acknowledgment that it could only be the act of the States. It was consummated beyond
question, however, by the ratification of the whole number. If doubtful before by the doctrine of relation, that unanimous assent placed the matter beyond question.
Are we one people? Let the fugitive slave law answer. Are we an unit on that subject? Let the proceedings of the Grand Jury at Boston and the sermons of Parker and speeches of Philips, Giddings and Sumner answer; let the acts of the Legislatures of Vermont and Connecticut say whether we are one people or not. A Union for particular purposes does not create fusion; it may make connection, and we have shown that consolidation is inconsistent with the ends designed, or the powers reserved to the States. The Legislature of the States, possessing all State powers, transferred to the United States Government certain powers for certain purposes, retaining in their hands all others; and the States now can alone amend, alter, or, if they chose, dissolve this Government. It is pretty clear, then, that they are not merged or compounded, as Chief Justice Marshall expresses the idea, into one. Judge Tucker considers the first State Constitutions as orignal contracts of society,” framed and adopted by the people, both in their individual and sovereign capacity and character. This is going further than Hobbes or Rousseau. It is the first avowal we have seen, that the people framed our Constitution in their individual capacity!
The only case where the character and nature of our Government and its formation, and the sovereign rights of the States, came directly up for consideration, and were involved in the issue before the Courts of the United and of the State Courts, was the Dorr, Rhode Island, case, of Luther vs. Borden. In cases like that of the Heirs of Fairfax vs. Hunter's Lessee, (1 Wheaton, 304,) Barron vs. City Council of Baltimore, ( 7 Peters, 243,) Houston vs. Moore, (5 Wheaton, 49,) and McCulloch vs. Maryland, the theories of Government therein expressed were not necessary to the issue, and are only the political theories of the Judges who delivered the opinions of the Court; and in the case of The West River Bridge Company vs. Dix, (6 Howard's U. S. Reports, 539) Judge Woodbury says: “In decisions of this Court on constitutional questions, it has happened frequently that
though its members were united in judgment, great differences existed
among them in the reasons for it, or in the limitations on some of the principles involved.” But, as we have said, the case of Luther vs. Borden (7 Howard's U. S. Reports, p. 1) is the only case where the questions involved in this discussion came directly in issue before the Courts of the United States for their decision. The opinion of the Court was delivered by Chief Justice Taney. The points of the case are thus stated by the reporter:
“At the period of the American Revolution, Rhode Island did not, like the other States, adopt a new Constitution, but continued the form of government established by the Charter of Charles the Second, making only such alterations, by acts of the Legislature, as were necessary to adapt it to their conditions and rights as an independent State. mode of proceeding was pointed out by which amendments might be made. In 1841, a portion of the people held meetings and formed associations, which resulted in the election of a Convention to form a new Constitution, to be submitted to the people for their adoption or rejection. This Convention framed a Constitution, directed a vote to be taken upon it, declared afterwards that it had been adopted and ratified by a majority of the people of the State, and was the paramount law and Constitution of Rhode Island. Under it, elections were held for Governor, members of the Legislature, and other officers, who assembled together in May, 1842, and proceeded to organize the new Government. The Court said, that the question, which of the two opposite Governments was the legitimate one, namely, the Charter Government—[which never came from the people]—or the Government established by the voluntary Convention, has not heretofore been regarded as a judicial one in any of the State Courts. The political department has always determined whether a proposed Constitution or amendment was ratified or not by the people of the State, and the judicial power has followed its decisions. The Courts of Rhode Island have decided in favor of the validity of the Charter Government, and the Courts of the United States adopt and follow the decisions of the State Courts in questions which concern merely the Constitution and laws of the States. The question, whether or not a majority of those persons entitled to suffrage voted to adopt a Constitution, cannot be settled in a judicial proceeding. The Constitution of the United States treated the subject as political in its nature, and placed the power of recognizing a State Government in the hands or Congress. Under the existing legislation of Congress, the exercise of this power by Courts would be entirely inconsistent with that legislation. The President of the United States was vested with the power, and had recognised the Charter Government; and the State [:here the word is used for State Government] might use its military power to put down an armed insurrection, and must determine for itself what degree of force is necessary.”
The Supreme Court of Rhode Island decided that the old charter and its legislation were the political powers which they were bound to respect, and the only ones legally in force at the time of this transaction, and accordingly convicted and punished the Governor, chosen under the new Constitution, for treason. The functions of the Courts, Judge Taney says, begins where the political power ends. “Constitutional laws precede the judiciary, and we act only under and after them, and as to disputed rights beneath them, rather than disputed points in making them. We speak what is the law, jus dicere—we speak or construe what is the Constitution, after both are made; but we make, revise or control neither."
ART. VI.—THE PROSPECTS AND POLICY OF THE SOUTH, AS THEY
APPEAR TO THE EYES OF A PLANTER-CONSIDERATIONS OCCASIONED BY THE PROCEEDINGS OF THE LATE COMMERCIAL CONVENTION, HELD IN CHARLESTON, S. C.
He who, from a rail car, impelled by a first-class locomotive, beholds the movements of an ordinary wagon, would be very apt to pronounce the latter stationary, if not retrogressive. There is something fascinating in progress. Even the stern Johnson was compelled to acknowledge that he delighted in the rapid movement of a mail coach. How exceeding tickled the old Lexicographer would be, could he enjoy the luxury of locomotion on a railroad! And as our senses are thus titilated by the enjoyment of physical or animal progress, so is an analogous sentiment called up by the consciousness of moral or intellectual development. No word in the English language is so much used as the dissyllable progress. In America we use it so much, that we have made a verb of it. This is an age of progress—a country of progress-a people of progress. Progress is synonymous with enlightenment, and he who falls into the rear rank, is considered recreant to the cause of civilization.
[October, If the age is progressive, it cannot be denied that it is also, in many cases, a tyrannical one. If the arm of the law no longer muzzles the press, opinion is not the less effectually smothered by an overruling public sentiment. No man can now enjoy his otium cum dignitate. Whatever his fancies or his inclinations may be, he is forced into the vortex of progress; and he who would cheerfully, if let alone, indulge in the repose of Rip Van Winkle, finds himself perforce acting in a crowd of noisy, brawling, roystering progressistas. We must needs be progressive, and if you inquire what progress is, the most satisfactory answer you can get appears to be, that it means cotton manufactories and railways. Civilization is measured by yards of cotton cloth and miles of rail iron. To make neither is to be involved in Cimmerian darkness.
Among the multitudinous books which are uttered for the use of children, we have seen an atlas in which the moral condition of each State in the world is represented by a symbol. In this map the countries of Europe north of the Pyrennees, the United States and British America are honored with the radiant star of enlightenment; whilst Italy, Spain, Portugal and their dependencies show no higher type than the cross of civilization. On what principle so large a proportion of Christendom should be deprived of a claim to enlightened refinement, we are not informed, and can solve it only by supposing ignorance on the part of the author, or a recognition of the standard we have just mentioned. If this standard is the test of enlightenment, the Southern States may congratulate themselves on their union with the North ; for though we may exhibit a tolerably fair show of rail iron, we are wretchedly deficient in yards of cloth. In the event of a dissolution of the Union, we may expect that some future Yankee geographer for infant minds will hereafter shroud our capitals in the dark cross of civilization, perhaps even in the symbol of semicivilization, and thus prove conclusively against us a case of retrogression.
Whether, in the original settlements of the States, the emigrants to the different portions of the country belonged to races specifically distinct, or whether difference of position has superinduced difference of habits, are questions not now to be discussed; certain