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law tyov I rL A .m .o- -,
TE TRWNEK _
By Gaillard & Aesportes]PR , 1886. y1 C.s Skr-r.
Notes on the Constitution of the -United
BY D, B. M'CRiGIT.
a Constitution ?
A Constitution of a Government may
be defined to be TILE ESTABLIH1D CON
DITLON OF LAW. It is the written will
of the sovereign, and the nature of that
will is, that it shall remain as it is writ
tenl, until the willof the sovercign changes.
A Constitution is a compromise be.
tweon sovereign and subject, and the
grand difference between monarchy or
aristocracy and democracy, is, that in
the l.tter this [compromise is reflexive,
and in the former it is not. In other
words, the sovereign in democracy is
also the subject. He creates Govern
ment, and lie is amenable to Govern
What is the Constitution of the Unital
The Constitution of the United
Stqtes is the established condition of Jaw
-the written will of the sovereian
the compromise between sovereign and
subject, of the United States,-that is
of the sovereignty of States united and
forming one sovereignty.
What is Sovereignty I
If there be a Herculean task in the
p>litics of our country, it is the effort to
define sovereignty. ' The discussion of
this very question has evolved princi
ples of sufficient importance to precipi
tate a civil war. That the late war is
due to misapprehension on this subject,
no careful dispassionate and sober judg.
ment can controvert. At the risk of
the charge of novelty, insanity or any
other thing, an attempt will be made ibl
these notes to explain "sovereignty,'
and that explanation will be left to the
candid and calm reason of the reader.
State -States--United States-are
three titles as distinct as red, white and
Popular Sovereignty--State Sover
eignty--United Sovereignty, are three
other cognomens as distinct as the form
The whole difficulty the writer appre
hends, which has attached to the politi
cal term "sovereign." has grown out of
the viewing "sovereignty." as an indi
visible and incommunicable power.
That this is a false premise will appear
from the following.
To say that "sovereignty" in man is
incommunicable, is to assnme that man's
sovereignty is created by himself. But
whatever rights. powers and privileges
are inherent in man (and it is these
which constitute his political sovereign
ty) are the concomitants of his natpre
and condition. Who gave him these .?
Omniscienee and Omnipotence, the Su
preme Sovereign of the Universe. Are
the attributes of that Being communica.
ble ? By no nieans. Why ? Bie
cause they are essential to His very be
ing.a Now are.the attributes of man's
political sovereignty essential to his be
* ing?. Not at all. These are accident,~
al properties. Trie, they are within
1his control, and therefore he has the
power to give or with~hold them, to utse
or abuse them, and this power extends
to his divorcing one or more of those at
* tributes. The theory then of an indi.,
visible political sovereignty is fallacious.
Bitt to return to the three -kin4. of
Popular Sovereigaty is a oondition of
.organized society in which, while each
individual sovereign acts upon his own
]judgment, and is so far a supreme judge,
yet he aclknowledges, and is morally and
legally liound to acknowledge, respect
and,obey, the Metas of the majority of
individual soernia nsant.in& from,
their will as expressed and contained in
the Constitution of their adoption. He
may or may not bo in that majority,
and yet in either case he is ' a constitu
ent element in a production that. is sa.
preme in relation to his individual su.
premac y, and ,tat "supreme production"
is the Constitution of the body politic.
That "body politic" is what we call a
State Sovereignty then is supERioR
to popular sovei eignty in its constituent
But State Sovereignty is iNFnIOn to
popular sovereignty in its component
Hence the St-ite and the people,
each, relatively, is a sovereign, accbrd
ing as the one or the other dictates.
NoTE.-State Sovereignty is used synon
ymously with Constitution.
State Sovereignty is the creature of
United Sovereignty is the creature of
And State Sovereignty is both supe.
rior and inferior to Popular Sovereign.
ty ; so United Sovereignty is both su
perior and inferior to State Sovereign
After writing the above, the author
full accidentally upon the following para
graph which accords so harmoniously
with his view of the creation of
State and' United (which is preferable
to "Federal") Sovereignty, that it is
A most important argument, cover
ing eighty printed pages, has been re.
ceived by the President from London'
in which are set forth the reasons why
Davis cannot be convicted in any court
of the crime of treason. The ground
gone o.ver dates from the foundation of
the Government--inchtdes the "Rights
of the States," as then understood-ihe
action of New York, Pennsy vania, Vir
ginia, Massachusetts, and the States in
accepting the Constitution, and the
opinions of Washington, Fisher, :Ames,
Hamilton, Webster, Ellsworth, Rufus
King, Davie, Sptncer, Madison, Jay,
Randolph, Franklin, Tench Cox, Jas.
Wilson and Chief Justice McKean, of
Pennsylvania. - The purport of the
opinions of these honored dead, as
showing the sovereignty of the States,
and which the barrister who sends to
the President the argument gives in. de
tail, may be summed up in the remark
of Wilson in the Pennsylvania Conven
tion '87: -
"Upon the existence of the State Gov
ernments depends the existence of the
Federal plan. The supreme, absolute
and uncontrollablt power is in the reo
ple before they make a Constitution,
and remains bi them after it is made.
* * * My position is, that the ab
solute sovereignty never gocs froni the
In view of these definitions then it is
plain that "Sovereignty" is the relative
powers of the people of the respective.
States, of the Constitutions of the States,
ahd of the Constitution of the -United
From these too it is plain how ab
surd it is to talk of the Constitution of
the State, or the Constatution of
the United States,. as a creature, and
not at, the same time ascribe to 'thema
some attributes of sovereignty.
When a citiden of S3outh Carolina as
sonts to the Constitution of his State, he
as really and absolutely yields, imparts
and communicates some o,f his attrib~utes
of sovereignty to that Constittion as
when ho submit. to t,be arbitrament in a
Individuality or incomnmunicab!ili
then is. not an essential attribute of
Take usw the preamble to the Con.
stitetion, and apply to it these princi
ples. It begin. and closes thus : '
"We Che People 9f the T-$nitedl
States * do ordai& and. es.
tablish thisO C sI,rrt!rpxfor the. tni
Or as paraphrased aooordlng- to the
a.bove principles r -
We the Savar4ian.a tke rs
Sovereigntio *, * * do ordain
and establish this SOVERICIGNTY for the
United Sovereigntles,-that is for the
yovernment of thep,-for the 'established
condition of law to them.
But why "ordain and establish this
. "In order to form a more perfect
"A more perfect 'Union" implies that
one Union had bi4n tried and failed.
And snch was thV fact. The bonA of
that Union was .h "Articles of Con.
federatiun and Porpptual Union," but so
inadequate was It.*.. he exigencies of
the Union, that a Convention of.all the
States was called "to devise such further
provisions as shall appear to thoni no.
cessary to render "the Constitution of
the Federal GoveA)ment adequate to
the exigencies of the Unieo"
2. *"Establish Justice." The Con.
vention had been painfullyimpreFied with
the neceabity of ipserting this second
object in the ordaining and establishing
of a Constitution for the 8upreme gov.
ernment of the Uh ited States. The
greatest act of irijnstice perhaps that
could be conceived, as the root of all
others, would be thefailure on the part
of a Government to nkeet its debts con
tracted in -good faith. -And yet the
Congress of the Confederation could
never meet its liabipities because ther
States declined or neglected to give it
the means, and thore was no power
ven Congress to collect them from the
The President has restored the su
premacy of the law and dwarfed the
military power of (he Republic to its
proper and very modest proAortions.
rho Supreme Court has ust prononc.
ad against the legalitf of the trial of
civilians by a Mihtary Commission, and
three persons who Are .sentenced "to
death by one of their lawless tribunals
have just been released from confine
As the angry, tuibid flood of civil
war subsides, the right of the citizen to
a speedy trial by jury is again declared
by the Supreme Court of the nation as
the inalienable right of the humblest
man in this Republic.
In his course towaids the mass 'of
those who supported the Southern Con.
federacy, the President has been singu
larly, magnanimously and wisely let.
ent. Nine-tenths f those who for four
ears, with unparalleled gallaptry, up
Keld the Confederacy, have long since
been unconditionally pardoned. The
Cabinet officers who counselled the
President of the Confederacy, the Con
gressmen who enacted those stringent
conscript and impressment laws which
kept up our armies, and many distin
guished Generals of the Confederate
armies have either been - formally par
doned, or have been released upon
parole, and no one dreams that they
will ever be molested in person or estAte.
The military bastiles of the country,
with one exception, have long since
been thrown open, and the distinguish'ed
Confederate officers who were confped
in them have been restored to teir
friends and families. Of the two State
prisonera'at Fortress Monroe only 90e
still endures all the rigorM 9f cp "in
For nearly a year the Presidet of
the late Confederate States hs !A
guished in prison. Feeble in .hal~th,.
and bejond any distinguished! states-.
marn of our acquaiptance wed4pt e
gentle pleasures of the family cop , ~a
gloomy ceT has been uncheered I~ ~j
presence of a faitlhful, noble vsa
beloved children. Guardpd 'like tlee
noat dangerous criminal upon ,wb'm thie
entence of deeth lhas been pronounced,
he has had not one niomnent of exernyption
from the presence of an armed gqrd,-'
since that hideous day when. ,chaiina.
were temnporarily rivetted' upgn his
The ceaseless trambp of tle tpra, the'!
heerio.. wraste of wateru Whieh dre
aone 'visible through the graVnugi of his|
cl, the agony of protiectEdaspargion
from wife and children, have nia.de ter-i
rible havoo with tieO wasted. ut.iWh of
this unfbrtunat gentleina#. ter.4
urd of long conhepuent, with hi oed
qe.reduced to poverty and lan 'sih
mg in eile, muay kill Kir-. eTEeion
Dawis; but it doe. net'a ."'1
in the eye. of Chritendon tid
bit siiethigs kh d nobli fortitude in
adversity have-lon* sinbe extiigulshed
ini be brmqxa of We people of the Sguth
thos jter prejud1icits,f q aUry feelings
whii his ergersof ment ap
before the colla0se' orhConfederacy
Of the t%6tshAde whdi might still have
nourished those biiAer 'feeise, had the
late President of the Confedertte Stteq
escaped, not one rem4in. Ais mi4for
tunes have mnelted every hqart, and
wh en a blow was struck at the reppta.
tion of the imprisoned sta tesmr n by an
unworthy hand through the colvmit or
a leading Northern, joIrnal, the unman.
ly assailant was denounced by the en.
tire people of the South.
The tini has arrived, and the public
sentiment of Christendom demarde, that
the ]resident shsl crown hisnoble poli
cy ot paciecation by the pardon of ef
ferson Davis. The charges that he
encouraged the assassins of President
Lincoln, and was the cause'of the suter.
ings of the Federal prisonerv, are believ.
ed neither by friend nor foe. We are not
blind to the faults of Mr. Davis' charac
ter. His imperious will, ignorance of
character, blind devotion to persobal
friends, strong prejudicm and want of
wisdom in the selection of proper agents
to execute his wishes, were serious faults.
But a more humane and (oftentimes
unwisely) Iinq.hearted statesman was
never entrusted with the destinies of a
people striving to achieve a distinct
nationality. He was morbidly averse
to inflicting punishment, and shrunk
from taking human life with the humani
ty of a woman, His errors were always
uponthe side of mercy wben the exi
gencies o6a desperate cause called for
The' true character of.this eminent
man can never be. blackened by foul
accusations of gomplicity with assasmini
and tortures of prisoners of war. Fgis
humanity, his Christian virtuea, his
personal integrity and lofty courage ire
.qualities which 'can never be truthfully
qxwtagned. The Southern Confedeeiy
might have had a, fpr more judicique
President, but it possessed no distinguioh.
ed man of purer chpracter than Mr. Da
vis. Except, therefore, that he was the
Peaident of the short-lived Confederacy,
lie has committed no offence. Thou
sands who have been pardonqd were his
egVals in what is called "treason" by
the North. So far as the acts were
concerned which precipitated civil war
upon the nation, there were hundreds
of our people who were more determ'n
ed and violent in s6cession than Mr.
If the prayers of Christendom for the
pardon of Jefferson Davis are of no
avail, let us at least no longer witness
the spectacle of an illustrious.State
prisoner immured in a fortress, without
a warrant of commitment from a civil
tribunal of competent jurisdiction, or
the pro'oet of a fair and speedy trial
by aj4ry of his countrymen. Since the
late decision of the Supreme Court,. the
imprisonment of any civilian by order of
the War" Department is a most fiagi,
tious contempt dithe authority of the
judicial dipartment of the Government.
A WARNING.---Not many montbs
since there was wedded to a fair,. bu,'
&Was ' too conVing, daughter of a highly
esteemedand repected citizen of on'e of
Dur intetior towns, a Northern man7 who
Dlamed o heo' been an officer in the
FeOel a 'rmy The narried life of the,
happy pair appears to hve glidqd along
mmothJy and pleasantly until at an in
auspieoba moaient a third priety steps.
mino the stage and' innsediately trans
lordis qilet bud bliss to discontent arid
bitternss The perfidious and brutal
hubaiha ya cpnfrontod by another
wife, w~e.havh hepro of his infamous
con4weg divq frorp) e1 North Ao'
metitItdelK2r and" satis herself as
to the ti'wtty A?shy of the sse, which
reacheS JMr. To her angu' and obr
row she feal that . statemient was.
ndeed, truasi .Thpa&ir hay exated
wrill end'vaisto b'se...-/M
At, e $ o ~ old lady~
tai4 W .o e'$len who
wes , og ., t4 00Qp3aup.a
hbl.se Nmna Ma I,'
php eotn4a't tel wa,"aaj smonga ok.
charloIqtte, N. IV.
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