PREFACE, .

CONTENT S.

CHAPTER I.

A WRITTEN CONSTITUTION.

Government is a machine for imposing rules of conduct-Its only safe
foundation is custom-An unwritten Constitution-A written
Constitution-Ours young in time and experience-Was una-
voidably a written Constitution-Its framers retained what they
could of the English Constitution-The difficulties of their task-
The materials they possessed-A new Government must combine
old things with new-A Government of limited powers-Altera-
tions of the English Constitution, how made-How made in
ours-The Fifth Article-Difficulty of applying it in practice-
Changed condition of the country since the Constitution was
made-Alterations of the Constitution require knowledge and
intelligence higher than the masses possess-Restraints on the
power of the English Parliament-The present war illustrates
the difficulty of applying the Fifth Article-Cannot the Constitu-
tion be altered otherwise than by the Fifth Article ?—The Con-
stitution has not prevented civil war-How can the difficulties
created by the war be met ?-Not by the Fifth Article-There
cannot be a Government with limited powers-Internal checks
to the power of Government-Changes may be made in the Con-
stitution with the approbation of the people-The restraining
power of the Judiciary in our system-Under a written Constitu-
tion, two questions arise: What is the law? and Does it conform

PAGE

to the natural law of all Governments?-The second question

considered first-Government is the means of applying the su-

preme power of the people to make laws-Power which the people

cannot use, they do not possess-The only power they can use is

that of dismissing their public agents-Should all branches of the

Government unite to alter the Constitution, there is no legal

remedy-Congress would be omnipotent, but for the alleged

check of the Judiciary-Can the Judiciary apply such a check?

-Power is the ability to do something, or cause it to be done—

Can the Judiciary exert a control over the Legislature and the

Executive ?—Not if it be weaker than they—It is useless to dele-

gate power that cannot be exerted-The weakness of the Judi-

ciary-The Legislature must be supreme in a popular Govern-

ment Our Government has not the stability of the English-

What are the defects of our Constitution? and what the remedy?

are problems presented by the war-Changes demanded by the

people ought to be made by Congress-The want of undisputed

power by Congress the difficulty-Constitutional questions never

settled-Case of Dred Scott-False doctrines-Powers necessary

to the Government illustrated by the rebellion-A Judiciary can-

not be a check on the Government-It cannot exert political

power-What is the duty of the Judiciary in case of an alteration

of the Constitution, intentionally made by the Government with

the assent of the people-Authorities-A supposititious judicial

opinion-Another-Power and duty of the English Judiciary-

Of ours-The war may cause changes in our Constitution-How

can they be made?-Implied powers of Government-Necessity

of ascribing supreme power to Government,

17

CHAPTER II.

UNION.

Our Constitution partly new and partly old-The English Govern-
ment the model of ours, so far as circumstances permitted-On
all questions we should therefore ask first, what was the English
law?-Nothing new in the American Union-A pattern for it

existed in "The United Kingdom," and in the relation of the
British Colonies to the mother country-Love of local power a
characteristic of the Saxon race-The British Union-Conquest
of the Islands by the Saxons-By the Normans—Qualities of
race explain English history-The ruling principle of the En-
glish Government is central combined with local power-Ireland
-Its conquest and union with England-Scotland-Its indepen-
dence and union with England-Similarity between the Act of
Union with Scotland and our Constitution-What is the law of
the English Union with Scotland and Ireland?—What is the law
of the English Union with the Colonies?-Resistance of the
American Colonies to the Government-The principle involved—
The Imperial power of Parliament-Why our ancestors withdrew
from the British Union-That Union their model when they
came to make one for themselves-What is and must be the law
of the American Union ?-Union of the Colonies before Indepen-
dence-The Confederation-Its defects-A Convention appointed
to make the Constitution-Necessary powers of the Government
to preserve or dissolve the Union-Constitutional provisions-
Bishop Warburton on the nature of an incorporate Union-
Whatever power be ascribed to the Government, it is always
under the control of the States and the people—Power of the
Government under the Constitution is adequate to the exigencies
of the Union-It has power to preserve or dissolve it-The ex-
tent of the country forbids the hope of a perpetual Union-How
it
may be dissolved by consent and the permission of the Govern-
ment―The right of secession-Power of the Government to per-
mit and regulate secession-Power of the Government to expel
a State from the Union-Utah-Civilization depends on race-
The Saxon race and civilization do not flourish in the South-
In the South we have the black race-
e-Its influence on civilization
A time may come when Union with the South will be impossible
—The Government must have power to exclude the South from
the Union-The rebellion-The objects of the war on the part of
the Government are the vindication of its authority, and the resto-
ration of the Union-What the Northern people may choose to
do-The Government must have unlimited power, or give place

to another which has-Summary of the conclusions of this and

the preceding Chapters,

CHAPTER III.

99

EXECUTIVE POWER.

The Executive branch of our Government a novelty-The English

Executive-Its essential feature subordination to the Legislature

-The war is testing the Executive power of the Constitution-

Two questions have arisen: What is the power of the Govern-

ment to defend the public safety? and What security does the law

afford to personal liberty?-Suspension of the Writ of Habeas

Corpus by the President-Discussions to which it has given rise

-Which department of the Government has authority to suspend

the privilege of the Writ ?--What is the English law?—What is

the American law?—Analogy between English and American

Executive power-The President has not exclusive right to sus-

pend the privilege of the Writ-Authorities-Statement of the

law, English and American-Conduct of Mr. Lincoln in suspend-

ing the Writ-His Message to Congress on the subject-Duty of

Congress-What ought to be the law-Other elements of the Ex-

ecutive power of our Government yet to be tested by time-The

position of a British Monarch, and his functions-The hereditary

principle-Dangers of an election of the President by the people—

The ballot-box the American substitute for the hereditary princi-

ple-The American Executive power tested by the war-Diffi

culty of making a good selection by a popular vote-Position of

the English Ministry-The mode of electing a President provided

by the Constitution-Its failure-Executive patronage-Nomi-

nating conventions-The proper organization of Executive

power a problem yet to be solved by the American people,.

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CHAPTER IV.

SLAVERY.

Slavery and the slave trade novelties in our Constitution-The negro
race flourishes in the South-Has become the foundation of
Southern society-The Union could not have been made, unless
slavery and the slave trade had been protected by the Constitution
-They were accepted with reluctance by the Convention-The
founders made a mistake--Disastrous consequences of that mis-
take-The Convention expected slavery to pass away-Why their
hopes were disappointed-Nature of the negro race-Its influence
on the white race-Cotton-Rise of opinion against the slave
trade Against slavery-Growth of the Abolition party-The
South alarmed-Its plans of resistance-They all fail-Secession
-The North roused-Civil war- -Mistakes of the South-Slavery
was safe in the Union-The Constitution on its trial with refer-
ence to slavery-What shall we do with slavery?-Emancipation
as a war measure-Conduct of the Democratic party in relation
to the war-"The Union as it was"--Prevailing sentiment of the
Northern people-The Government now in a position similar to
that of the founders of the Constitution-The Sphinx's riddle-
Any settlement of the slavery question must satisfy justice for the
negro, the rights of the Southern people and the moral sentiment
of the Northern people-True position of the negro race in the
South-Not that of merchandise-The place assigned to it by the
Constitution Rights of the Southern people in relation to the
negro race- -The Northern people must participate in its govern-
ment-The demands of Northern opinion on the subject—The
President's plan of gradual emancipation by the aid of Congress-
Abolition of slavery in the District of Columbia-Prohibition of
it in the Territories-These measures opposed by the Border
Slave States and by Northern Democrats-Moral influence of the
President's proposal-It does not reach the root of the evil—The
principle that men are property is false-There can be no peace
or Union till it be taken out of the Constitution—The fugitive
slave law-Why has the negro race power over our destiny?—The
President's plan of gradual, compensated emancipation cannot