secure the sacred observance of this vital rescript, and to prevent usurpation, the people provided for the exaction of an oath from such servants and trustees. That oath being to support the constitution; to obey its commands; to observe all its reservations; and to keep themselves under it, and consequently subordinate to its makers; the functionaries must commit perjury and treason if they "act, in this business, outside of the Constitution!"

This is our written system. The same general principles apply to both the state and the federal constitutions. The people were above them. They must remain so, unless a revolution has occurred, which has made them subjects.

What people? How organized? And how capacitated politically to act? These questions must be answered from contemporaneous authorities, as questions of fact. What did the founders say upon these points? and induce the people to declare as their will? Contemporanea expositio est optima et fortissima. In all our remarks we shall hold this idea in view.

Mr. Stephens' book well and truly presents the true theory of our "republic of republics;" but, with an exception to be mentioned, its evidences and arguments are generally those of the great intellects who have shone in our partisan politics and statesmanship; and thus a noble and true theory is narrowed and degraded to a matter of party doctrine, and made to suffer all the odium and antagonism that befall the Democratic party, whereas the setting forth of the original formation of the states: their character; their acts in federating: and the contemporaneous expositions of all these things by the fathers; would have placed the discussion above a partisan grade and atmosphere; would have been more worthy of a leading pen; and would have been much more likely to bring our people from wandering in the "wilderness of sin," to the promised land-the political and liberty-preserving system of their

fathers.

However, it is a valuable labor to group even these authorities upon the points of the book; and it is a highly creditable compilation, skilfully arranged, so as to make a cogent, and, indeed, a conclusive argument, to sustain the federal theory of the Constitution.

No criticism upon the style, plan, or purpose, need be made, further than to say that the English is good, and the diction respectable — the graces being few; the plan has the shape, without the ease, grace, sparkle, wit, humor, or point of good colloquy; and the purpose is to show, by facts, authorities and arguments, that our political system is a federation of sovereign States.

The peculiar advantage of the colloquial mode to the author is, that he fights ideal foes whose strength being within that of their creator, cannot prevent his predetermined victory. In the cause of truth, however, it is better to grapple with the real deceivers and misleaders, who stand thickly around, vulnerable at every point. Vanquishing the foes of conservatism and peace, in presence of the governing people of our country, does practical and instant good; while battling with prototypes and old dogmas, and trusting to the voters' seeing points, and tracing analogies, postpones indefinitely the victory, to which the author's righteous cause and superior powers entitle him, and which would be a public blessing! Mr. Stephens' fine faculties should be exerted on the rostrum, and in Congress, against the Shermans, Sumners, Binghams, Butlers, Greeleys, and suchlike breathing evils, rather than the ideal Heisters, Bynums, and Nortons, or even the defunct Storys and Websters.

If it was well to go back to the "Expounders," it was better to keep on to the Constitutional era, where the very dogmas of the said "expounders appear in the shape of charges against the Constitution, made by its enemies, to defeat it. This would have enabled the author, upon every point and argument of his book, to reproduce Hamilton, Madison, Wilson, Dickinson, Washington,

and others, with far greater effect than results from repeating Calhoun, Bibb, Gen. Jackson's writers, senate resolutions, and Democratic platforms. And, in truth, as expositors of our system, these are at best but excellent copies of Madison, Jefferson, Tucker, and Taylor of Caroline; and even the latter merely repeated what had been said at the time and act of forming the Constitution, by its founders. Therefore we regret that the stones of Mr. Stephens' mosaicwork were mainly quarried from the mine of partisan politics, instead of constitutional history.

However the calm, candid, and truthful tone of the work is admirable — the spirit of the constitutional era running through all its pages. And it is to be regretted that the superabundant proofs which that era affords, are so sparingly used, when they would have added to the conclusions of the work

"Confirmation strong

As proofs of Holy writ."

One of Mr. Stephens' collocutors opens the discussion, by speaking of that gentleman's apparent inconsistency, in supporting secession, after making his great Union speech of November 14, 1860; whereupon Mr. S. proceeds at length, and most satisfactorily, to explain that our polity was a union of states, of which Georgia was an equal member; that our political system is merely the government of republican states by themselves—the governmental contrivances being their creations, administered by their citizens, and only possessing and exercising their power; that he advised Georgia to acquiesce in Lincoln's election; that she did not do so, but withdrew from the association of states she, as to herself, had formed; that in all this she simply exercised her sovereignty, and demanded of him her due obedience and devotion. He has no difficulty in vindicating his consistency.

He clearly sets forth the history of the Union; the action taken by all the States to form the first federation, which he analyzes; the defects of the system, and the consequent general desire for a change; the Annapolis Convention of 1786; the Philadelphia Convention and the credentials of the delegates from their States; the action of the Convention; the constitution they proposed, with an excellent analysis thereof; maintaining throughout and establishing irrefutably the proposition that the Constitution is a compact of federation between sovereign States.

He introduces a decisive mode of proof, which seems not to have been much appreciated till an English publication entitled "Davis and Lee," in 1864 or 5, (republished here) put it prominently forward, viz: The history of the conventions, debates and ratifications of the several States- thus exhibiting precisely what gave the federal constitution its existence and validity, and the federal functionaries their sole warrant of jurisdiction within a given state. He then quotes and comments on Calhoun, Bibb, Jackson, Webster, the dicta of the Supreme Court of the United States, the Senate resolutions of 1838 and 1860, etc., - all supporting state sovereignty; and criticises Story and Motley, as well as Webster's efforts, that oppose that theory. And after quoting Jefferson, Hamilton, Tucker, Rawle, John Q. Adams, Lincoln, Greeley, and the Hartford convention on secession, he concludes with a powerful chapter on the strength of confederations and the working of our system.

Altogether we consider this work very valuable, from its calm, judicial spirit, and from its strong and logical presentation of overwhelming proofs, on the most important of all political questions. Its appearance is timely, for public attention is more than ever directed to the questions discussed. It is, however, like the most of judicial opinions, founded entirely upon precedents; and much disappointment will be felt, that so superior and fertile a mind, should have

produced a work with so little originality, profound thought, careful analysis, and philosophical reasoning. As a commentary it is far below Upshur and Calhoun; as a criticism on Story and Webster, it does not approach Bledsoe; and in its most valuable argument, it has been anticipated by the English work before mentioned. In short, a student of constitutional science will find little that he has not seen before.

All things considered, however, the book is a worthy addition to our political literature. While it gathers, and puts in available and useful form, a multitude of scattered fragments of statesmanship and political philosophy, it comments upon them, and the errors it opposes, with a most commendable temper, candor, truthfulness and logical force. Every citizen can read it with profit, and every library should contain it.

The other work, mentioned in the heading, is written by a professor of constitutional law, who seems not to be a professor of constitutional facts; but as a literary performance, and as an effort of original reasoning, it is far superior to that of Mr. Stephens; and it exhibits more research, and profundity of thought. It is however replete with inexcusable and pernicious errors. Like Story and Webster, the author comes to his work with a cherished theory. Assuming his premises, culling such facts of constitutional history as suit him, and arguing logically, he finally reaches the conclusions he desires.

He sets out by dividing conventions into four classes: "I. The spontaneous convention, or public meeting. II. The ordinary legislative convention, or general assembly. III. The revolutionary convention. IV. The constitutional convention." The first three classes are sufficiently described for our purpose by the appellations: the fourth is the main subject of the work, which may be described as the full gospel of consolidation and centralism. The author is unable to imagine a voluntary "Government," or union, that can be other than "a rope of sand:1 he attributes to "Government" that coercive power over States, that was expressly denied to it by its makers: he transforms the federal agency into a Briareus, whose hundred or less hands grasp as many helpless but sweetly captivated states, which are thus strongly attached to the Union and, to cap the climax, he thinks the constitution of a state, a straight jacket, put upon the people thereof, by a superior power (because they are crazy, idiotic, or otherwise incapable of self-government we presume) which they cannot put off without leave, no matter how dirty, ragged, hurtful, or otherwise objectionable it may be.

That this is a fair presentation of the constitutional law this professor professes, is evinced, we think, by the following samples of his theory, as well as style. He sets out by defining the word "state" as meaning "1st, any organized political community;" and 2nd, "in a limited sense

a mem

ber of the American union." With great parade of definition, and show of careful reasoning, he asks where "sovereignty resides?" and remarks that "the difficulty is, in the jumble of national and State organizations, to locate it." He finally "locates" it in the nation, and generalizes thus-paraphras ing Webster: "The people of the United States, in 1789, threw the existing constitutions of the several States into hotchpotch, and repartitioned among these bodies, the powers they were thenceforth to exercise, giving a portion thereof to the States, a portion to the general government, and reserving the residue to themselves. And the States have habitually conformed to the edict, which thus curtailed, and ascertained their powers." [p. 29.] "Under the constitution of the nation, each State is permitted, by the sovereign, to frame for its own people, its local constitution." And, continues he, in doing this, "they perform a delegated function." [p. 65.]

Not a fact, or a phantom of a fact, in all American history, supports such ideas; but everything disproves them. But it were a mistake to suppose the

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author's ideas to be a "jumble; or that the contents of his head are hotchpotchy. On the contrary, he reasons clearly from consolidation premises, though he evinces some creative genius in making them. It must be noted, however, that the constitutional construction of the school to which he belongs, means building, rather than construing; and their structure is like the temple of Fame in the picture, majestic and "cloud-capped," but is unsubstantial, unpractical, unhistorical, and unconstitutional. They seem to think it right, or at least "smart," to make the facts of their great political fabric. Why should they not? Did not the French at Suez fabricate stone for their piers, jetties, and other constructions? Is it not better and easier to make the fabrications for constitutional construction, since neither materials nor manipulation are required? If Professor Jameson and Engineer Lesseps had been coeval with the civil engineer of Syracuse, the great globe itself" might have become vagrant, like the lost Pleiad, for they would have said: "Assume your fulcrum, Archimedes ; " and the premises we all occupy, and reason from, would have been forced to yield to the assumption. And why should we not, in like manner, be logically evicted from our houses or farms, some professor, engineer, or less reputable character, assuming the premises, and saying to us

"Vamos!

But seriously, the professor has merely made a bull. It would be as sensible to expect, by throwing thirteen suits of clothes into a rag-bag, to consolidate their owners into a giant, equal to all of them, as to expect to make a nation by throwing the State constitutions into hotchpotch. The elements of a nation must be people, and all our people were States. It was they (and not their constitutions - or mere written evidences of their will) that must have been put into his vast brick machine (let us call it, as hotchpotch is rather vague) ground over, remoulded, and baked anew, in one stupendous "brick with all the corners on. American history only shows one other high-sourced blunder as amusing. Another eminent Illinois gentleman, named Lincoln, said the union made the States, and gave them their only status and rights!

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Starting from such premises as the above, the author goes sublimely but logically along, through all his 550 large octavo pages, never deigning to look at the being, born of poor but respectable parents, in 1788 (not 1789), called the federal government, together with what Mr. Stephens calls the res gestæ — probably meaning the things happening at the gestation. He ignores, or gives no weight to, the following facts: 1, that the states are named and described in the constitution, as New Hampshire, Massachusetts, Connecticut, New York, et alii, without the slightest qualification; 2, that they became members of the Union without the least imaginable change; 3, that they are called States throughout the constitution, not in any limited sense, but in the same sense as France, Spain, and Russia are. [Art. III. § 2: Amendments Art. XI.]; 4, that each colony was formed and governed by herself till independence, when she became a complete body politic or state, which, having no superior, must have been sovereign; 5, that George III., at the instance of the American commissioners who negotiated the treaty of 1783 acknowledged each state to be sovereign; 6, that each declared or implied sovereignty to be in herself: 7, that all declared and guaranteed that each had sovereignty, and every possible power, except what she delegated; 8, that this sovereignty was a matter of essential character distinguishing the state from a province or other subdivision of a state or nation; 9, that when the constitution was formed, these States were pre-existent, with sovereign characters solemnly established, and they could but have acted in such characters; 10, that the federal convention of 1787, unanimously wrote the preamble of the constitution as follows: "We the people of the States of New Hampshire, Massachusetts, Connecticut" etc., "do ordain this constitution" etc., and they never

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changed their will; but as it was provided that nine of the States might make the federation, and as it could not be foretold which of them might accede to it, the Committee on style properly struck out the names, but put in the equiv alent expression, now in the preamble; 11, that Article VII. provides the establishment of this constitution between the States so ratifying the same, thus showing that the States, by ratifying, established, and alone became the potential parties; 12, that the States have the original and absolute elective power, and the exclusive control of the same [Art. I. § 2, 3; II. § 1], and that they act severally in electing both houses of congress and the president, while these, as their agents, appoint all other officers; 13, that there are no citizens in the federation but citizens of States [Art. III. § 2; IV. § 2] each federal officer necessarily remaining a citizen of a state, owing allegiance thereto, and, indeed, being sworn to support his state's "supreme law," which the Constitution is; 14, and finally that we have no nation but States "united States," the constitution throughout, thus phrasing the political arrangement of 1788, or calling it a "union of States" [Art. I. § 2; IV. §§ 3, 4]. These facts destroy without remedy, the fabric of consolidation, built, con amore, and with such signal ability, by the professor. If he had been seeking for truth, and had come to ruin, which could hardly be, we should sympathize with him; but he started with a palpably wrong theory; sought to prove it; and, as Carlyle once said, "mashed his face to a pancake against the adamant of things:" and we can neither pity him, nor hope he will have the face to go further. A nation is a good thing to have, but he must manage to get along with one which absolute sovereigns constitute by federalizing themselves, and governing themselves jointly. The people might have been one state, but for the stubborn fact that they were many. And the consolidation of them might have been advisable, but our fathers all thought and acted contrariwise; and we protest against discarding their wisdom, after experiencing for two or three generations, and up to 1860, that "its ways are ways of pleasantness, and all its paths are peace." It is sad to Gradgrind to death a theory of so much esthetic merit, but it is a matter of absolute history, that the raw materials of which alone a nation could be made, viz.: the people, the land, and the political power, all belonged to the then existent and acting States of New Hampshire, Massachusetts, et alii, which were, after their federation, the self-same States, in every respect, that they were before thus showing that a nation or state comprising them was a political impossibility.

Of the two authors, under review, however, we must concede to this one the better understanding of sovereignty, though he makes a bad use of his superior knowledge. He sees the nature of it, but errs in regard to its location; while Mr. Stephens, who is correct, in the main, as to its location, is evidently somewhat mistaken concerning its nature. Though the tenor of his book, and the proofs he marshals, make against it, yet he seems now and then to have a vague idea that the States can be partly sovereign and partly subject, for he quotes Webster, as "fully admitting that the States are sovereign, except in so far as they have delegated specific sovereign powers." (pp. 398, 403). Hon. Geo. H. Pendleton, in a recent speech at Bangor, said: "It is a union of States, sovereign, except in so far as they have delegated," etc. The N. Y. World expresses it, that the States are "not sovereign, except as to their reserved rights." Nearly all our statesmen, imitating Story and Webster, use the same expression, forgetting that "sovereign" and "sovereignty" are superlative in signification; that divisible sovereignty is a solecism, and is not known to publicists [see Vattel and Lieber]; that what they call exceptions from sovereignty are precisely identical with the powers absolutely owned by sovereignty, and delegated to its agents; and that it is absurd to talk of sove